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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Conley v. Alaska Communications System Holdings, Inc. (5/9/2014) sp-6910

Conley v. Alaska Communications System Holdings, Inc. (5/9/2014) sp-6910

        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  



BRETT CONLEY and                                      )  

MARINA CONLEY,                                         )  

                                                       )    Supreme Court Nos. S-14194/14213  

                         Appellants and                )  

                          Cross-Appellees,             )  

                                                       )    Superior Court No. 3AN-09-04739 CI  

        v.                                             )  

                                                       )   O P I N I O N  

ALASKA COMMUNICATIONS                                  )  

SYSTEMS HOLDINGS, INC.,                                )  

                                                       )   No. 6910 - May 9, 2014  

                         Appellee and                  )  

                          Cross-Appellant.             )  

                                                       )  



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

                 Judicial District, Anchorage, Frank A. Pfiffner, Judge.  



                 Appearances:    Michael  W.  Flanigan,  Flanigan  &  Bataille,  

                 Anchorage, for Appellants and Cross-Appellees.  Richard W.  

                 Maki and David H. Shoup, Tindall Bennett & Shoup, P.C.,  

                 Anchorage, for Appellee and Cross-Appellant.  



                 Before:  Fabe, Chief Justice, Winfree, Stowers and Maassen,  

                                            

                 Justices.  [Carpeneti, Justice, not participating.]  



                 WINFREE, Justice.
  

                 FABE, Chief Justice, dissenting.
  



I.       INTRODUCTION  



                 A tractor-trailer driver was injured while unloading cargo.  The driver sued  

                                                     



the receiving company for damages, arguing that the company negligently trained its  

                                                                                   


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

forklift operator, the operator was negligent, and the operator caused his injuries.  A jury  



                                                                                

found  the  company  was  negligent,  but  also  found  that  the  negligence  was  not  a  



                                                                                                                    

substantial factor in causing the driver's injuries.  The driver appeals, arguing that the  



                                      

superior  court  erred  by  admitting  propensity  evidence  regarding  his  safety  record;  



denying  a  res  ipsa  loquitur  instruction;  and  denying  motions  for  directed  verdict,  



                                                                                  

judgment notwithstanding the verdict, and a new trial.  We affirm the superior court's  



rulings.  



II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                    In 2007 Brett Conley drove a tractor-trailer for Lynden Transport, Inc.  



While  working  for  Lynden,  Conley  delivered  two  reels  of  innerduct  to  the  Alaska  



Communications Systems (ACS) equipment yard in Anchorage.  Danisa Rudolph, an  



                                                                                        

ACS warehouse employee, operated the forklift to unload the reels from the Lynden  



                                                                                                    

trailer.  ACS protocol called for Rudolph, as the forklift operator, to hold a "toolbox  



                                                                                                       

meeting" with Conley to advise him how she intended to conduct the lift and what his  



role would be.  Rudolph did not hold the meeting.  



                    Conley signaled Rudolph to begin unloading.  Rudolf placed the forks  



                                                                                           

under one of the reels on the trailer and lifted the reel, but it is unclear whether she fully  



                                                                                                       

tilted the load back so that the reel would rest against the forklift mast.  Conley signaled  



                                                                                                   

Rudolph to back up.  She backed up approximately six to eight feet and began lowering  



the reel to the ground.  



                    Conley signaled Rudolph to stop and he began removing the chain that ran  



                                                                                

through the reel's opening back to the trailer.  Despite having been trained not to do so,  



Conley stepped in front of the reel while removing the chain.  As Conley pulled the  



                                                            

chain, the reel began to tilt toward him.  He tried to steady the reel, but it was too big; as  



                                            

he turned around to get out of the way, the reel fell onto his lower back.  Conley suffered  



                                                             -2-                                                       6910
  


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

three fractured ribs, a punctured lung, a chipped hip socket, and several broken lumbar     



vertebrae.  



                     Following  the  incident  Conley  appeared  to  experience  neurological  



symptoms.    He  was  referred  to  a  neurologist,  was  diagnosed  with  a  motor  neuron  



                                                            

condition called Amyotrophic Lateral Sclerosis (ALS, or Lou Gehrig's disease), and was  



                                                                     

given a prognosis of 18 to 36 months to live.  But when Conley began improving, he was  



                                                 

referred to another neurologist for a second opinion.  That neurologist concluded Conley  



                                                                                             

did not have ALS, but instead had a trauma-induced motor neuron syndrome caused by  



the accident.  



          B.         Proceedings  

                                1 sued ACS and Rudolph, alleging that Rudolph had negligently  

                     Conley                                                              



operated the forklift and that ACS had negligently failed to provide Rudolph adequate  

                                                              



equipment and training. ACS filed a third-party complaint against Lynden, seeking fault  

                                                                           



allocation  and  damages  apportionment  based  on  Lynden's  negligent  training  and  



retention of Conley as an employee.  The parties agreed ACS could dismiss its third- 



party claim against Lynden while still allowing the jury to consider allocation of fault to  

                                                                                                                         



Lynden.  The parties also stipulated to dismiss Conley's claims against Rudolph.  



                     Conley filed a pretrial motion in limine to exclude evidence relating to  



                                                                                          

"[p]rior work incidents or write-ups [involving Conley's work at Lynden] unrelated to  



                                                                                                                    

the facts of this accident" and filed a written objection to ACS's proposed Trial Exhibit  



                                                      

2035,  a  compilation  of  Conley's  write-ups  for  past  misconduct  and  accidents  while  



                                                                 

working  for  Lynden.    ACS  responded  that  the  evidence  was  relevant  to  Lynden's  



                                                                                                

negligence in retaining Conley and to the cause of the motor neuron disease.  In reply,  



                                                                             

Conley's  primary  arguments  were  that  ACS's  negligence  was  a  superseding  cause  



           1         Marina Conley, his wife, joined him in bringing suit.  



                                                                 -3-                                                               6910  


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

                                                                                                          

negating the relevance of any of his previous work-related incidents and that any prior  



                                                                        

incident unrelated to the accident at ACS was not relevant.  The superior court denied  



                                                                                              

the pretrial motion without comment.  Conley did not object when ACS referred to the  



evidence  during  opening  statements,  used  the  evidence  while  examining  witnesses  



                                                                                                         

during trial, and referred to the evidence during closing arguments.  When ACS moved  



                                                                   

to admit Exhibit 2035 during trial, Conley's attorney stated, "[n]o objection."  At no time  



                                                                                                             

before or during trial did Conley request an instruction to the jury that the evidence be  



considered for limited purposes.  



                                                                               

                    At  the  close  of  trial,  Conley  moved  for  a  directed  verdict  that  he  had  



"established that the accident caused his back injury, [and] his orthopedic injuries," and  



                                                          

that he was "entitled to any damages connected to those injuries."  The superior court  



denied the directed verdict motion.  



                                                                           

                    Conley requested a jury instruction based on the res ipsa loquitur doctrine,  



providing  that  the  jury  could  infer  ACS  was  negligent  if  Conley  demonstrated  that  



"(1)  the  event  that  caused  the  harm  does  not  ordinarily  happen  unless  someone  is  



                 

negligent, [and] (2) the harmful event was caused by something that was under the  



                                                                                                                          

defendant's exclusive control."  ACS opposed the proposed instruction, arguing that res  



                                                                                           

ipsa loquitur was inapplicable because each party offered a complete explanation of the  



                                                                                         

accident and that Conley's proposed instruction omitted the third element:  proof the  



                                                                                       

plaintiff did not contribute to or cause the accident.  The superior court refused to issue  



                                                                                                                

the instruction, reasoning that the third element was not met in light of evidence that  



Conley's negligence could have contributed to the accident.  



                                                                                     

                    The jury returned a special verdict finding that ACS was negligent, but that  



                                                                                                               

ACS's negligence was not a substantial factor in causing Conley's harm. Conley moved  



                                                                                                            

for judgment notwithstanding the verdict (JNOV) and a new trial on all issues other than  



negligence.  The superior court denied both motions.  



                                                                -4-                                                         6910
  


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

                                                                               

                     Conley appeals, arguing that it was  error to admit evidence of his past  



                                                                                                   

work-related incidents; to reject the res ipsa loquitur instruction; and to deny the motions  



                                                                    

for a directed verdict, JNOV, and new trial. ACS cross-appeals a number of the superior  



court's evidentiary rulings, but, because we affirm the judgment, we do not reach ACS's  



cross-appeal issues.  



III.      DISCUSSION  



          A.         Evidence Of Conley's Past Incidents  



                                  

                     Conley  filed  a  pretrial  motion  in  limine  for  a  protective  order  barring  



                                             

evidence of past incidents at Lynden and filed a written objection to Trial Exhibit 2035,  



a compilation of write-ups of Conley's work-related misconduct and accidents.  The  



                                     

write-ups documented  that Conley:  (1) slipped on ice while working; (2) exhibited  



                                                            

abusive behavior toward a supervisor; (3) took excessive breaks and was not performing  



              

quickly enough; (4) dropped a heavy metal dock plate on his foot and in a fit of anger  



                                                                                         

threw a hammer; (5) ran a forklift into a sprinkler system, causing $500 in damages; and  



(6) forgot to load three items onto a delivery truck.  



                                                                        

                     Conley argued the evidence was inadmissible because it was irrelevant and  

unrelated to the dissimilar accident at issue,2 it was evidence of prior bad acts to prove                  



               3 and its probative value was outweighed by the danger of unfair prejudice,  

character,                                                                             



          2          See  Alaska  R.  Evid.  402   ("Evidence  which  is  not  relevant  is  not  



admissible."); cf. Alaska R. Evid. 401 ("Relevant evidence means evidence having any     

tendency to make the existence of any fact that is of consequence to the determination   

of the action more probable or less probable than it would be without the evidence.").  



          3  

                                                                                                              

                     See Alaska R. Evid. 404(b)(1) ("Evidence of other . . . acts is not admissible  

                                                                                                          

if the sole purpose for offering the evidence is to prove the character of a person in order  

to show that the person acted in conformity therewith.") (emphasis added).  



                                                                 -5-                                                          6910
  


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

                                                                                                           4  

                                                       

confusing the issues, misleading the jury, or causing undue delay.   ACS opposed the  



                                                                             

motion, arguing that the evidence was relevant to whether Lynden negligently retained  



                                                                                                   

Conley as an employee and to whether Conley suffered motor neuron disease symptoms  



                    

prior to the accident, and that the evidence was more probative than prejudicial.  The  



superior  court  denied  the  pretrial  motion  without  explanation.    The  court  was  not  



                                              5 

                                                        

required to explain its ruling,  and we assume the court accepted ACS's arguments that: 



                                                                                                                    6 

                                                                                                                      but rather as  

(1) the evidence would not be offered solely  for propensity purposes, 



              

support for its theories that Lynden was negligent and at least partly responsible for the  



                                                                                                                        

accident and that Conley showed motor neuron disease symptoms prior to the accident;  



                                                                                               7  

and (2) the evidence was more probative than prejudicial.   Conley did not request a  



limiting instruction - although it seems apparent he would have been entitled to one had  



                                                                

he requested it - restricting the use of the evidence only to ACS's claims that Lynden  



was  negligent  and  that  Conley  showed  motor  neuron  disease  symptoms  before  the  

accident, and not to ACS's claim that Conley himself was negligent.8  



           4          See Alaska R. Evid. 403 ("Although relevant, evidence may be excluded       



if its probative value is outweighed by the danger of unfair prejudice, confusion of the       

issues, or misleading the jury, or by considerations of undue delay, waste of time, or   

needless presentation of cumulative evidence.").  



           5  

                             

                      See Alaska R. Civ. P. 52(a) ("Findings of fact and conclusions of law are  

unnecessary on decisions of motions . . . except as provided in Rule 41(b).").  



           6          Cf. supra note 3.  



           7          See, e.g., Hoekzema v. State , 193 P.3d 765, 771 (Alaska App. 2008) ("[The  



judge]  offered  no  explanation  for  his  ruling.    We  therefore  presume  that  the  judge  

adopted the prosecutor's argument . . . .").  



           8          See Alaska R. Evid. 105:  



                                                                                              

                      When evidence which is admissible as to one party or for one  

                                                                                                                     (continued...)  



                                                                   -6-                                                             6910
  


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

                                                                                      

                     Conley did not object or request a limiting instruction when ACS referred  



                                                                           

to the evidence during opening statements, and he did not object or request a limiting  



                                                        

instruction when ACS actually used the evidence with witnesses.  When ACS moved to  



admit Exhibit 2035 into evidence, Conley's attorney stated, "[n]o objection" without  



                                                                                                     

requesting a limiting instruction.  Conley did not object or request a limiting instruction  



when ACS referred to the evidence during closing arguments.  



                     On appeal Conley argues that the evidence was inadmissible propensity  



                                                                               

evidence not offered for a proper purpose and that its probative value was outweighed  



                                                   9  

                                                                                                        

by the danger of unfair prejudice.   Conley asserts that ACS's actual use of the evidence  



for propensity purposes demonstrates that denying his pretrial motion was not harmless  



                                                                     

error.  ACS responds that the superior court did not abuse its discretion by denying the  



                                       

pretrial motion in limine and that Conley failed to preserve for appeal the issue of how  



the  evidence  was  used  at  trial  because  he  neither  objected  nor  requested  a  limiting  



          8	         (...continued)
  



                    purpose but not admissible as to another party or for another
  

                                                                   

                    purpose is admitted, the court, upon request, shall restrict the
  

                                      

                     evidence to its proper scope and instruct the jury accordingly.
  

                     In cases tried to a jury, evidence inadmissible as to one party
  

                                              

                     shall not be admitted as to other parties until the court has
  

                    made all reasonable efforts to effectively delete all references
  

                    to the parties as to whom it is inadmissible.
  



(Emphasis added.)  



          9  

                                                                                                                            

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

                                                                                                                      

underlying  relief  sought  in  the  motion."    Heynen  v.  Fairbanks ,  293  P.3d  470,  474  

(Alaska 2013).  The relief sought in Conley's motion in limine - preclusion of evidence  

- generally calls for abuse of discretion review.  Id. (citing State v. Doyle, 735 P.2d 733,  

                            

739-40 (Alaska 1987).  But whether the trial court "applie[s] the correct legal standard  

             

is a question of law to which we apply our independent judgment."  Ayulak v. Red Oaks  

                               

Assisted Living, Inc. , 201 P.3d 1183, 1194 (Alaska 2009).  



                                                                -7-	                                                        6910
  


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

                                                                   

instruction during trial.  Conley replies that he had no obligation to object during trial  



                                                                                                

because the superior court had previously denied his motion in limine to preclude the  



evidence.  We agree with ACS.  



                    Alaska  Evidence  Rule  404(b)(1)  governs  the  admission  of  propensity  



                                                                                      

evidence and provides:  "Evidence of other . . . acts is not admissible if the sole purpose  



                                                                                  

for offering the evidence is to prove the character of a person in order to show that the  



                         

person acted in conformity therewith."  (Emphasis added.)  That rule, however, also  



                                                      

provides that evidence of prior acts may be admitted for a proper purpose, "including,  



but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge,  



                                                                 10  

                                                                                                   

identity, or absence of mistake or accident."                        (Emphasis added.)  If a court determines  



such  evidence  is  admissible  for  a  proper  purpose,  Alaska  Evidence  Rule  403  then  



requires the court to weigh the probative value of the evidence against the danger of  

unfair prejudice.11  



          10        Alaska R. Evid. 404(b)(1).  



          11        Cf. supra, note 4; see, e.g., Ayuluk , 201 P.3d at 1194-96.                          We review such  



balancing for abuse of discretion, see, e.g., id. at 1194, and have stated that we review  

a Rule 403 decision 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 . . . Rule 403.' "  Brandner v. Hudson , 171 P.3d 83, 87  

                                                                         

(Alaska 2007) (quoting Bluel v. State , 153 P.3d 982, 987 (Alaska 2007)).  



                    The dissent argues that Rule 404(b)(1) carries with it a presumption against  

                                                                                               

the admissibility of prior bad acts for any purpose due to the potentially significant  

prejudicial impact.  The dissent relies exclusively on pre-1991 Alaska criminal case law  

stating that Rule 404(b)(1) is a rule of exclusion, not inclusion, of evidence of prior  

crimes.  See, e.g., Oksoktaruk v. State, 611 P.2d 521, 524 (Alaska 1980); Lerchenstein  

                                                                         

v. State, 697 P.2d 312, 315 n.2 (Alaska App. 1985), aff'd 726 P.2d 546 (Alaska 1986).  

                                                                                                     

The dissent acknowledges the Legislature amended Rule 404(b) in 1991, and we note  

that  the  court  of  appeals  has  held  the  amendment  transformed  the  rule  from  one  of  

                                                                                                            (continued...)  



                                                              -8-                                                        6910
  


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

                                                                                                                     

                    The  first question  we  must ask  is  whether  the  superior  court erred  by  



                                                                                               

determining that the disputed evidence was relevant to ACS's two trial theories.  ACS  



explained to the superior court that Conley stood out in terms of safety problems, that he  



violated safe working procedures, and that he performed slowly, "exhibit[ed] slurred  



                                                                                       

speech, and would occasionally fall or stumble like he was intoxicated."  ACS contended  



                                               

that some of this evidence was relevant to apportioning fault to Lynden "for negligently  



                                                                         

employing a driver who was either careless or unable to perform safely."  ACS also  



                                    

contended that some of this evidence was relevant to the cause of Conley's motor neuron  



condition - noting motor neuron disease symptoms such as "[s]lowness and difficulty  



                                                    

of movement, slurred speech and clumsiness, seemingly characteristic of drunkenness,  



                                                                                             

and angry outbursts," ACS said it would use the evidence of Conley's records to show  



                                                                               

that his motor neuron disease predated the accident.  ACS also noted that "[b]ecause of  



                         

its effect on the body and motor coordination, people with ALS are prone to accidents."  



                                                                     

Further, ACS submitted an opinion from one medical doctor that "[t]he cause of ALS is  



                                 

. . . not known," and that "[t]he chance that ALS was actually caused by trauma in this  



                               

case is exceedingly small."  The doctor explained that "[Conley's] ALS quite possibly  



          11        (...continued)  



exclusion to one of inclusion.  Pavlik v. State , 869 P.2d 496, 498 n.1 (Alaska App. 1994);  

                                                                                         

see also Gehrke v. State, Mem. Op. & J. No. 5685, 2011 WL 746459, at *4 n.10 (Alaska  

                                                             

App. Mar. 2, 2011) ("[T]he rule regarding evidence of other crimes was regarded as a  

                                                                                                               

rule of exclusion . . . [and] the rule has since been amended to make it one of inclusion."  

(emphasis in original)).  The dissent suggests that the rule change is limited to criminal  

cases and has no application in civil cases and that the presumption of exclusion applies  

here.  But see Ayuluk , 201 P.3d at 1194-95 (applying Rules 403 and 404(b) to reverse  

exclusion of evidence without mentioning presumption of exclusion).  



                    These  issues  were  not  raised  in  the  superior  court,  were  not  raised  on  

appeal, were not briefed by the parties, and are not properly before us.  We leave these  

                                                                                                           

issues for another day.  



                                                               -9-                                                         6910
  


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

                                                                                   

started before his injury," noting that "[t]here had been at least one observation of speech  



difficulty  before  the  accident  by  a  superior  at  work  [and]  [t]here  had  also  been  



observations of shortness of breath, slowness at work, and difficulty with speech and  



                                                                                   

movement."  ACS submitted deposition testimony from another medical doctor that in  



                                                                                         

determining the cause of Conley's motor neuron condition, he would place weight on  



evidence of stumbling or slurred speech.  



                   When the superior court considered Conley's pretrial motion, each piece  



of disputed evidence could reasonably be seen to have some permissible relevance:  



(1) the write-up for abusive behavior towards a supervisor could suggest emotional  



outbursts  symptomatic  of  motor  neuron  disease,  but  is  less  probative  of  Lynden's  



                                                                                            

knowledge of Conley's attitude toward safety; (2) the accident report that Conley's foot  



                                 

slipped  off  a  forklift  brake  could  be  probative  of  Lynden's  knowledge  of  Conley's  



carelessness when loading and unloading cargo or of coordination problems from a  



preexisting motor neuron disease; (3) the verbal warning that Conley was performing  



                                                                                                     

slowly and lacked initiative could be probative of difficult movement caused by a motor  



                                                             

neuron disease; (4) the warning letter that Conley "need[ed] to pay closer attention when  



                                   

loading trailers" could indicate that Lynden should have known he was careless when  



                                                            

loading and unloading cargo, but is less probative of the motor neuron disease; (5) the  



                                                 

injury  report  for  a  slip  and  fall  on  ice  could  indicate  coordination  problems  from  a  



preexisting  motor  neuron  disease,  but  it  is  less  probative  of  his  carelessness  and  



                                                                      

Lynden's negligence; (6) the warning letter that Conley dropped a dock plate on his foot  



and threw a hammer could indicate that Lynden should have known Conley was careless  



                                                     

when loading and unloading cargo, and the accident and outburst could be probative of  



a motor neuron condition.  



                                                                                                       

                    Conley's opening brief to us regarding the denial of the motion in limine  



does not mention ACS's pretrial contention that the proffered evidence was relevant to  



                                                            -10-                                                       6910
  


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

its trial theory that he exhibited signs of a motor neuron disease prior to the accident.  



                                

Any  argument  that  the  proffered  evidence  directed  to  that  issue  was  not  relevant  is  



            12  

                                                                            

waived.         Conley's argument that the proffered evidence was not relevant to ACS's  



                                                                                                

claim that Lynden negligently trained and retained him as an employee essentially is  



limited to the following statements:  



                              None of the evidence was relevant as to the key issue  

                    in this case, which was why did the reel fall off of the fork lift  

                    forks  onto  Conley,  nor  were  probative  as  to  whether  the  

                    specific actions of Conley in approaching the reel to remove  

                                                                                                 

                    his chains was negligent.  



                              . . . .  



                              None of the write ups demonstrated that Lynden . . .  

                                                  

                    was put on notice of conduct on the part of Conley that was  

                                                                       

                    related to his actions which ACS alleged was a cause of the  

                    accident.  



                    The first statement is simply wrong.  There were two relevant key issues  



- the timing and cause of Conley's motor neuron disease, and whether Lynden was  



negligent and a legal cause of the accident such that fault could be attributed to it.  The  

                                                                                                                             



second  statement  goes  more  to  the  weight  to  be  given  the  evidence  rather  than  its  

                                                                                                             



admissibility, and certainly some of the evidence related to Conley's work loading and  

                                                                                                         



unloading  cargo.    While  the  evidence  varied  in  its  probative  value,  ACS  at  least  



                                                                                                                  

demonstrated that the evidence was relevant to non-propensity purposes.  And even if  



                                       

the incidents were not all highly probative, they went to important issues.  Accordingly,  



          12  

                                                                                                                 

                    Kingery v. Barrett , 249 P.3d 275, 285 (Alaska 2011) (stating party waives  

                                                                                                                       

legal arguments by "inadequately briefing them"); Adamson v. Univ. of Alaska , 819 P.2d  

                

886, 889 n.3 (Alaska 1991) ("[W]here a point is given only a cursory statement in the  

argument portion of a brief, the point will not be considered on appeal.").  



                                                              -11-                                                             6910  


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

we conclude that the superior court did not err at the pretrial stage in determining that the  

                                                                       



disputed evidence was relevant to ACS's trial theories.   



                                                                       

                    The second question we must ask is whether the superior court abused its  



                                                                             

discretion in determining that the probative value of the evidence outweighed the danger  



of unfair prejudice.  Conley would have us review the superior court's decision based on  



                                                                   

how ACS actually used the evidence at trial, arguing that ACS's use of the evidence as  



propensity evidence demonstrates not only the danger of unfair prejudice, but actual  



unfair prejudice, and that the superior court therefore abused its discretion by denying  



                                13  

                                       But  the  superior  court's  decision  was  based  on  its  pretrial  

his  motion  in  limine. 



                                                         

weighing of the probative value of the evidence and the danger of unfair prejudice from  



the presentation of that evidence in the manner and for the purpose proffered.   The  



                                                                                                         

superior court could reasonably assume that ACS would present the evidence for its  



                                                                   

stated purposes and that if ACS strayed from those purposes during trial, Conley would  



object and, if necessary, request a limiting instruction.  The superior court's denial of the  



motion in limine did not mean ACS's use of the evidence at trial was unfettered, and  



               

Conley's failure to take appropriate action when ACS improperly used the evidence  



during trial does not mean the superior court abused its discretion before trial by denying  



                                                                

the motion in limine.  And Conley does not argue on appeal that when the superior court  



                            

denied the motion in limine and Conley then failed to ask for any kind of limiting order  



                               

regarding use of the evidence, the superior court committed plain error by not sua sponte  

placing limits on ACS's proposed use of the evidence.14  



          13        For purposes of Conley's appeal, we accept his argument that ACS actually  



used the evidence as propensity evidence directed at Conley rather than as evidence of  

                                                                                                    

Lynden's negligence or the timing of Conley's motor neuron disease.  



          14        Cf. Alaska R. Evid. 105 ("When evidence which is admissible . . . for one  

                                                  

                                                                                                           (continued...)  



                                                             -12-                                                       6910
  


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

                                                   

                    In light of what was before the superior court in connection with the pretrial  



motion in limine - including the reasonable assumptions that ACS would follow the  



                                                                                         

rules in its presentation of the disputed evidence and that Conley would, if he deemed  



                    

it necessary, raise appropriate objections and ask for appropriate limiting instructions -  



and in light of Conley's failure to make any argument to us in his opening brief that  



                                                                                                            

ACS's proposed use of the evidence on the motor neuron disease issue violated Alaska  



                                               

Evidence Rules 402-404, we  cannot say that "the potential danger predominated so  



greatly as to leave us firmly convinced that admitting the challenged evidence amounted  



                                                 15  

                                                                             

to  a  clear  abuse  of  discretion."                   Based  on  all  of  the  foregoing,  and  the  required  



deferential standard of review, we affirm the superior court's pretrial denial of Conley's  



motion in limine.  



                                                                                             

                    We now turn to Conley's assertion that ACS's actual use of the evidence  



                                                                       

during trial itself warrants reversal.  Conley  asserts that ACS used the evidence for  



                                                                                                                

propensity purposes in several instances.  For example, in examining one witness ACS  



                                                                 

asked, "Mr. Conley was one of the people who stood out in terms of safety problems of  



the Lynden drivers?  Right?"  With another witness ACS asked, "[W]ould you agree . . .  



          14        (...continued)  



purpose but not admissible . . . for another purpose is admitted, the court, upon request,  

                                           

shall  restrict  the  evidence  to  its  proper  scope  and  instruct  the  jury  accordingly.")  

(emphasis added); see also Sowinski v. Walker, 198 P.3d 1134, 1160 (Alaska 2008)  

                                                                                                     

(explaining limiting instruction is required only if requested).  



                    The dissent contends that the superior court had an independent obligation  

                                                                                       

"to inform the parties of the permissible non-propensity purpose and to offer them an  

                                                                                        

appropriate limiting instruction to ensure that the jurors considered the evidence only for  

                                                                                                                        

non-propensity purposes." Because Conley did not raise this issue of first impression on  

                                                                                                               

appeal and neither party had reason to brief it to us, we do not consider it here, but rather  

                                                                                             

leave it for another day.  



          15        Brandner , 171 P.3d at 87.  



                                                              -13-                                                         6910
  


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

that he kind of has got a pretty spotty record, including for safety?" then stated, "He's   



not a very safe guy to begin with."  In its closing argument, ACS listed the past incidents  



and said, "Mr. Conley is somebody who would do this.  No one else in the history of  



these  unloads  .  .  .  had  gone  in  front  of  a  reel  while  it  was  still  up  on  the  forks.  



                                                                                                                       

Mr. Conley was impatient, he was angry, he did things he knew not to do . . . ."  But  



Conley neither objected nor requested curative instructions during these instances.  



                                                                                                                   16 

                                                                                                                      he had  

                    Conley argues that under Landers v. Municipality of Anchorage 



                                   

no obligation to object to the use of the evidence during trial because the superior court  



                                                                                                             

already  had  ruled  on  its  admissibility  pretrial.    Landers  involved  a  lawsuit  over  



                                                                     

destruction of personal property in which the superior court granted a motion in limine  



                                                                                                       17  

                                                                                                           The defendant  

to exclude evidence of the property's sentimental and emotional value. 



argued on appeal that the plaintiff waived his right to challenge the ruling on the motion  

                                                                                                   

in limine because he did not object to certain jury instructions that reflected the ruling.18  

                                           



We concluded that failing to object to the instructions did not prevent us from reviewing  

                                                              

the motion in limine.19  



                    Landers  is  distinguishable  from  this  case  for  two  reasons.    First,  the  

                                                                       



argument in Landers was that the failure to object to the jury instruction prevented us  

                                                                                             



                                                   20  

from reviewing the pretrial ruling.                     ACS concedes we can review the pretrial ruling  



here, but argues that Conley waived the right to challenge the actual use of the evidence  



          16        915 P.2d 614 (Alaska 1996).  



          17        Id. at 615-16.  



          18        Id. at 617.  



          19        Id.  



          20        Id.  



                                                             -14-                                                        6910
  


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

at trial.  Second, unlike the single-issue discrete category of damages in Landers , here  



                                                                                                  

we have two distinct issues:  (1) the superior court's decision  to  allow the disputed  



evidence for the permissible purposes ACS proffered; and (2) ACS's actual use of the  



disputed evidence for impermissible purposes.  The superior court's decision to allow  



admission of the disputed evidence for certain permissible purposes was not a decision  



that  the  disputed  evidence  could  be  used  for  impermissible  purposes.    Conley  was  



                                                                                                    

obligated to stay vigilant to ACS's evidence use during trial and to object to possible  



violations of the evidence rules.  Because Conley failed to object to the improper uses  

of the past incidents and write-ups, that issue was not preserved for appeal.21  



                                                                                  

                   Absent a preserved evidentiary objection, we reverse the use of evidence  



                                                           22  

                                                                But Conley does not argue that the superior  

only if we conclude there was plain error. 



court  committed  plain  error  by  not  sua  sponte  limiting  ACS's  attorney's  use  of  the  



                                                                                                     

disputed evidence during trial.  Conley argues that the superior court erred in its initial  



                                                                                                  

pretrial ruling and that Conley was powerless to object when ACS impermissibly used  



          21       See Laidlaw Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d 1093, 1102-03  



(Alaska 2002) (holding that to preserve issue for appeal defendant needed to object at  

trial to expert testimony exceeding scope of pretrial ruling); see also State v. Thomes,  

                                                                                                      

697 A.2d 1262, 1264 (Me. 1997) (holding that defendant failed to preserve issue for  

                                                                                                                 

appeal when pretrial ruling admitted evidence for a limited purpose, evidence presented  

at trial exceeded that purpose, and defendant failed to object).  



          22       Alaska R. Evid. 103(d); see also Adams v. State, 261 P.3d 758, 764 (Alaska  



2011).  To rise to the level of plain error, the error must be obvious, must be prejudicial,  

                                

must  affect  substantial  rights,  and  cannot  be  the  result  of  an  intelligent  waiver  or  a  

                                                                                   

strategic decision not to object.  Khan v. State , 278 P.3d 893, 900 (Alaska 2012) (citing  

                                                                    

Adams , 261 P.3d at 771).  



                                                            -15-                                                      6910
  


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

                                                    

the evidence during trial.  Having already resolved those arguments, we do not consider  

plain error.23  



          B.        Res Ipsa Loquitur Instruction  



                                 

                    Conley challenges the superior court's rejection of his proposed res ipsa  



                                 

loquitur instruction.   Jury instruction decisions generally involve questions of law to  

which we apply our independent judgment.24  



                    The res ipsa loquitur doctrine applies only "when an accident ordinarily  



                                                                   25  

                                                                                                     

does not occur in the absence of negligence."                          It allows a plaintiff claiming negligence  



to rely upon circumstances surrounding an injury as an inferential bridge for establishing  



                                     26  

                                                             

breach of a duty of care.                 However, a plaintiff cannot rely on res ipsa loquitur if the  



                                                                                         27  

evidence furnishes a complete explanation of the accident.                                   That is, "if the evidence  



                                                                                    

discloses the circumstances of the accident to the extent that there is nothing left to infer,  



                                                                      

then the doctrine of res ipsa loquitur, which is founded upon inference, is no longer  



          23        The dissent argues that the trial testimony ACS actually adduced did not   



support its pretrial assertions about the relevance of the proffered evidence.  But even  

assuming this to be the case, it does not mean that the superior court erred in its pretrial  

                                                                                                       

ruling based on what was presented to it at that time.  And had Conley made an objection  

during trial or asked the superior court to revisit its evidentiary ruling in light of actual  

                                                                          

trial testimony, he might well have obtained appropriate relief.  He did not do so, and he  

                                                                                                

does not now argue that the superior court committed plain error by not sua sponte taking  

action.  We therefore do not address this issue.  



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



Pagenkopf v. Chatham Elec., Inc. , 165 P.3d 634, 646 n.50 (Alaska 2007)).  



          25        Falconer v. Adams , 974 P.2d 406, 414 n.12 (Alaska 1999) (citing State  



Farm Fire & Cas. Co. v. Municipality of Anchorage , 788 P.2d 726, 730 (Alaska 1990)).  



          26        Id.  



          27         Widmyer v. Se. Skyways, Inc., 584 P.2d 1, 11 (Alaska 1978).  



                                                              -16-                                                         6910
  


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

              28  

                                                                         

needed."           Although res ipsa loquitur is not precluded merely because a litigant offers  



a possible explanation of the events, it is precluded where a witness directly involved in  



                                                                                   29  

                                                                                                             

the incident completely describes the circumstances.                                   For example, we rejected res ipsa  



                       

loquitur  in  a  suit  arising  from  a  car  accident  when  the  driver  testified  to  the  events  



                                          30  

surrounding  the  accident                    and  in  a  suit  arising  from  an  airplane  crash  when  the  

passenger testified to the pilot's specific acts prior to the crash.31  



                     Here both Conley and Rudolph witnessed the accident and testified about  



                                                                                                                          

their perceptions of the event.  Rudolph testified that she lifted the reel with the forklift,  



                                    

moved the reel away from the trailer and lowered it to a few inches above the ground.  



                                                                                                                                

She explained how Conley signaled for her to stop, how he stepped in front of the reel  



                                                                                     

and pulled on a chain through the center, and how the reel toppled.  Conley described the  



                                                                    

same events from his perspective. Though neither explained exactly what caused the reel  



to fall, they presented the jury with a complete, eyewitness account of the accident's  



circumstances.    Both  parties  presented  other  testimony  relying  on  these  eyewitness  



                                       

accounts to explain the accident's cause.  Because the jury received a complete account  



           28         Crawford v. Rogers, 406 P.2d 189, 193 (Alaska 1965).  



           29        See   Widmyer, 584 P.2d at 11-12 (reasoning that a possible explanation of   



events did not preclude res ipsa loquitur instruction when there were no survivors to  

testify, there was no direct evidence of accident's cause, and there was heavy reliance  

on expert witnesses); see also State Farm , 788 P.2d at 731 (allowing a res ipsa loquitur  

instruction when there were no eyewitnesses and only expert inferences as evidence of  

                                                                                                                         

incident's cause).  



           30        Evans  v.  Buchner ,  386  P.2d  836,  837  (Alaska  1963)  (holding  res  ipsa  



loquitur  inapplicable  in  car  accident  suit  when  driver  "explained  to  the  best  of  his  

                                                                                                                                 

recollection everything that occurred prior to the [car] overturning").  



           31  

                                                                                        

                      Crawford, 406 P.2d at 193-94 (holding res ipsa loquitur inapplicable in  

                                                                                                                        

airplane crash suit when passenger described pilot's conduct that could have caused  

airplane to go into a spin).  



                                                                  -17-                                                             6910
  


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

of the accident's circumstances, there was no need for res ipsa loquitur's inferential  



bridge to breach of duty and the superior court did not err in declining to issue that  



instruction.  



          C.       Directed Verdict,  JNOV, And New Trial Motions  



                                                                                       

                   Conley argues that the superior court erred by denying his motion for a  



                                       

directed verdict at the close of the evidence, his motion for judgment notwithstanding the  



                                   

verdict (JNOV), and his motion for a new trial.  We first address the directed verdict and  



JNOV motions, then turn to the new trial motion.  



                                                                                                          32  

                                                                                                              "Where  

                   The denial of a directed verdict or JNOV is reviewed de novo. 



such a motion is evidence based, a trial court can . . . grant the motion [only when] the  

                                      



evidence is such that, when viewed in the light most favorable to the nonmoving party,  

                                                                                         



reasonable people could not differ in their judgment; an appellate court must use the  

same test."33  



                   Conley asked the superior court to direct a verdict that he had "established  

                                                                                               



that the accident caused his back injury, [and] his orthopedic injuries," and that he was  



"entitled to any damages connected to those injuries."  After the jury verdict, Conley  



                                 

renewed the argument in a motion for JNOV.  ACS opposed both motions, arguing that  



Conley had not established who was at fault for the accident.  We agree with ACS:  



                                                                                       

Whether the accident caused Conley's orthopedic injuries was not the threshold question  



                                                                                                         

for the jury; the threshold question was whether ACS's negligence - not the accident  



generally - caused the injuries.  



         32        Borgen v. A & M Motors, Inc.             , 273 P.3d 575, 584 (Alaska 2012); Cameron  



v. Chang-Craft, 251 P.3d 1008, 1016-18 (Alaska 2011).  



         33        Borgen , 273 P.3d at 584 (citing Cameron, 251 P.3d at 1016-18; Lynden,  



Inc. v. Walker , 30 P.3d 609, 612 (Alaska 2001); Mullen v. Christiansen , 642 P.2d 1345,  

1348 (Alaska 1982)).  



                                                          -18-                                                    6910
  


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

                                                                            

                    Conley's special verdict form read:  "Was defendant, ACS's negligence a  



substantial factor in causing harm to the plaintiff, Brett Conley?"  The real heart of  



                                                                    

Conley's argument is that the jury could not return a sustainable verdict by finding that  



                                        

ACS  was  negligent,  but  that  its  negligence  was  not  a  substantial  factor  in  causing  



Conley's harm.  Conley argues that "given the evidence at trial, no reasonable juror  



                                                                           

could decide that ACS's negligence was  not a  cause of [Conley's] injury."  Conley  



                                                                       

essentially  argues  that  in  finding  negligence  but  not  causation,  the  jury  returned  an  



                                                                                         

inconsistent verdict.  But we have said that "[w]e will not disturb a jury verdict if there  

is a theory which reconciles the apparent inconsistencies."34  



                    In  moving  for  JNOV,  Conley  asked,  "How  could  defendant's  forklift  



                                                                                                     

operator being negligent not be the cause of the accident?"  But ACS reconciles any  



apparent  inconsistency,  pointing  out  that  the  jury  could  have  found  that  ACS  was  



negligent  on  other  grounds  and  that  this  negligence  was  not  a  substantial  factor  in  



                                                    

causing Conley's injuries.  First, there was evidence that Rudolph did not negligently  



operate the forklift.  Both Rudolph and Conley testified that the forks were fully tilted  



                                                             

back, correctly positioning the reel on the lift.  Witnesses, including one of Conley's  



experts,  asserted that there was no possibility the reel could have fallen off the lift if the  



                                                                                       

forks were properly positioned.  But ACS's engineering expert testified that even with  



the  forks  properly  positioned,  if  the  chain  running  through  the  reel  got  caught  in  a  



manner lending Conley a mechanical advantage, Conley could have caused the reel to  



                                                               

fall when he pulled on the chain.  Conley testified that when he tried to remove the chain  



          34        Yang v. Yoo, 812 P.2d 210, 215 (Alaska 1991);                           see also  Borgen , 273 P.3d  



at 585 ("To give effect to the jury trial right in civil cases, a court must determine, by   

examining  the  pleadings,  instructions,  arguments,  and  evidence,  whether  there  is  a  

logical  view  of  the  case  that  harmonizes  what  seems  at  first  to  be  an  inconsistent  

verdict.")  (quoting  Schmit  v.  Stewart,  601  P.2d  256,  256  (Alaska  1979)  (internal  

                                                                              

quotation marks omitted)).  



                                                              -19-                                                         6910
  


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

it "bound a little bit," so he "gave it a good pull" and then dropped the chain, all before  



                                                               

the reel fell over.  In a pretrial statement introduced at trial, Conley said he realized he  



                                                   

"kind  of  pulled  [the  chain]  too  hard."    Although  Conley  argues  that  ACS's  expert  



testimony is speculative and could not form the basis of the jury's opinion, we do not  



                           

agree.  Based on Conley's own testimony, the jury could have found sufficient facts to  



support the expert opinion.  



                    Second, the jury could have found ACS negligent because Rudolph failed  



               

to hold a "toolbox meeting" before unloading the reel to ensure that Conley was apprised  



of proper unloading procedures, or, as Conley's forklift expert testified, because ACS  



inadequately trained Rudolph.  Neither of those theories necessarily contradicts the jury's  



                                                                                            

finding of no causation.  In light of Conley's testimony that he had transported similar  



                                                                                                               

reels "hundreds" of times and that he had been taught not to stand where a load could fall  



                                                                         

on him and not to approach a reel unless it was secure, the jury could have concluded  



                                                                                                        

that Rudolph's failure to instruct Conley on unloading procedures at a "toolbox meeting"  



                                                                                     

had no bearing on the conduct leading to the accident.  Similarly, in light of testimony  



that Rudolph properly operated the forklift, the jury could conclude that ACS's failure  



to adequately train Rudolph was not a cause of the accident.  



                                                                     

                    Considering this evidence in the light most favorable to ACS, the jury could  



                                                                                           

have  concluded  that  ACS  was  negligent  but  that  ACS's  negligence  did  not  cause  



                            

Conley's injuries.  Therefore we cannot agree that "no reasonable juror could decide that  



                                                                                                                    

ACS's negligence was not a cause of [Conley's] injury."  The superior court did not err  



in denying a directed verdict and JNOV.  



                    Conley also argues that the superior court erred in denying his motion for  



            

a  new  trial.    The  decision  to  grant  or  deny  a  new  trial  is  within  the  trial  court's  



                                                              -20-                                                         6910
  


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

                35  

                                                                    

discretion.         We will "disturb the [superior] court's exercise of discretion only in the  



most  exceptional  circumstances  to  prevent  a  miscarriage  of  justice";  that  is,  "when  



evidence   to   support   the   verdict   was   completely   lacking   or   was   so   slight   and  



                                                                                                      36 

                                                                                                          Again we view  

unconvincing as to make the verdict plainly unreasonable and unjust." 

the evidence in the light most favorable to the non-moving party.37  



                                                                                     

                    Conley raises three arguments in support of his motion for a new trial.  As  



                                                      

in   the   JNOV   argument,   Conley   asserts   that   the   evidence   "was   so   slight   and  



                                

unconvincing" as to not support the jury's finding of no causation.  But as outlined  



                                                        

above, viewing the evidence in favor of ACS, the jury could have found ACS negligent  



                                                                                                  

in a manner that did not cause Conley's injuries.  The evidence of no causation was not  

                                                                                                           38  Conley also  

so slight and unconvincing as to make the verdict unreasonable and unjust. 



argues that a new trial is warranted because of the admission of prejudicial propensity  

                                   



evidence and the rejection of his res ipsa loquitur instruction.  We addressed both of  



                                                                 

those issues above and found no reversible error.  Therefore the superior court did not  

err in denying Conley's motion for a new trial.39  



          35        Marron v. Stromstad , 123 P.3d 992, 998 (Alaska 2005) (citing Kava v. Am.   



Honda Motor Co. , 48 P.3d 1170, 1173 (Alaska 2002)).  



          36        Id. (quoting  Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003)) (quotation  



marks omitted).  



          37        Id. (citing Kava , 48 P.3d at 1173).  



          38        See id.  



          39        In his statement of points on appeal, Conley asserted that the superior court  

                                                                         

erred  in  denying  a  JNOV  or  new  trial  as  to  the  absence  of  Conley's  and  Lynden's  

                                                                     

comparative  negligence.    Because  these  arguments  were  not  addressed  in  Conley's  

briefing, we do not consider them here.  Patrawke v. Liebes , 285 P.3d 268, 271 n.7  

                         

(Alaska 2012) ("[W]here a point is given only a cursory  statement in the argument  

                                                                                        

                                                                                                           (continued...)  



                                                             -21-                                                       6910
  


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

V.      CONCLUSION  



                 We AFFIRM the superior court's judgment.  



        39       (...continued)  



portion of a brief, the point will not be considered on appeal." (alteration in original)  

                                                                                 

(quoting Adamson v. Univ. of Alaska , 819 P.2d 886, 889 n.3 (Alaska 1991))).  



                                                     -22-                                               6910  


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

FABE, Chief Justice, dissenting.  



                                                                                                         

                     In my view, the superior court abused its discretion by denying Conley's  



                                                                                      

motion in limine to exclude evidence of prior bad acts that were highly prejudicial, only  



                                                                                                 

minimally  probative,  and  not  submitted  for  a  significant  non-propensity  purpose.  



                                                                                                                 

Moreover, the superior court compounded the harm of its admission of this evidence by  



                                                                                            

failing to identify the permissible non-propensity purpose for which the evidence would  



be  received.    It  was  the  superior  court's  responsibility  to  inform  the  parties  of  the  



                                                                                                                 

permissible non-propensity basis for its admission of the evidence and to offer them an  



                                                                                                               

appropriate limiting instruction to ensure that the jurors considered the evidence only for  



                                                                   

non-propensity purposes.  Its failure to do so compounds the error of the superior court's  



                                                                       

initial denial of Conley's motion in limine to exclude the evidence of prior bad acts.  



Accordingly, I respectfully dissent.  



                                                                                                         1  

                                                                                                            Rule 402 provides  

                     This case implicates three Alaska Rules of Evidence. 



the  general  background  rule  that  "[a]ll  relevant  evidence  is  admissible,  except  as  



                                        2  

                                                                          

otherwise provided . . . ."                Rule 403 provides one exception to Rule 402 admissibility,  



specifying that "[a]lthough relevant, evidence may be excluded if its probative value is  



                                                                          

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the  



                    3  

                                                                                                                 

jury  .  .  .  ."        Finally,  Rule  404(b)(1)  provides  another  exception,  specifying  that  



           1         I rely on the court's statement of the facts of the case.  



           2         Alaska  R.  Evid.   402.    Alaska  Rule  of  Evidence  401  defines  "relevant  



evidence" as "evidence having any tendency to make the existence of any fact that is of                    

consequence to the determination of the action more probable or less probable than it   

would be without the evidence."  



           3  

                                                                                                                     

                     Alaska R. Evid. 403. In its typical application, this balancing test measures  

                                    

the probative value of the evidence against its deleterious effects.  Where the prejudicial  

               

effect is "demonstrably greater," the evidence must be excluded.  Commentary Alaska  

                                                                                                                    (continued...)  



                                                                 -23-                                                            6910
  


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

"[e]vidence of other crimes, wrongs, or acts is not admissible if the sole purpose for  



                                                                                                                      

offering the evidence is to prove the character of a person in order to show that the  



                                                                       4  

                                                                                                                

person acted in conformity therewith."                                    The purpose behind this prohibition is to hinder  



                                                                                                                                     

"the  endeavor  to  fasten  guilt  upon  [a  party]  by  proof  of  character  or  experience  

                                                            5 because "[t]he natural and inevitable tendency of the  

predisposing to an act of crime"                                                                                                    



tribunal . . . is to give excessive weight to the vicious record . . . thus exhibited, and  



                                                                                                                                                         

either to allow it to bear too strongly on the present charge, or to take the proof of it as  



                                                                                                                                   6  

justifying a condemnation irrespective of guilt of the present charge."    Our Rules of  



                                                                                                                                                              7  

                                                                         

Evidence ensure that "a [party] starts  his life afresh when he stands before a jury." 



                                                                   

Rule 404(b)(1) goes on to carve out a limited exception to this exception, permitting the  



                                                                                          

admission of prior bad acts under Rule 402 "for . . . purposes [other than to show that the  



                                                                                                                           

person acted in conformity therewith], including, but not limited to, proof of motive,  



                                                                                                

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or  

accident."8  



                         The barriers to introducing evidence of prior bad acts are formidable.                                                          The  



very existence of Rule 404(b)(1) leads to the conclusion that "[a]dmission of evidence   



of prior bad acts is by its nature highly prejudicial and should always be subject to                                    



             3           (...continued)  



E. R. 403.  



             4           Alaska R. Evid. 404(b)(1).  



             5           People v. Zackowitz , 172 N.E. 466, 468 (N.Y. 1930) (Cardozo, J.).  



             6           Id. (quoting 1 WIGMORE ,  EVIDENCE  194 (1923)).  



             7           Id.  



             8           Alaska   R.   Evid.   404(b)(1).    Other   provisions   in   Rule   404(b)   carve  out  



additional exceptions not relevant in this case.  



                                                                            -24-                                                                      6910
  


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

                          9  

                                                                                                     

careful scrutiny."           Accordingly, we have held that Rule 404(b)(1) creates a presumption  



                                                             

against  the  admissibility  of  evidence  of  prior  bad  acts  for  any  purpose  due  to  its  



                                              10                                    11 

                                                                                         

significant prejudicial impact.                   At least in a civil case,             the party seeking to introduce  



evidence of prior bad acts must therefore bear the burden of demonstrating two things  



in order to overcome that presumption.  



                     First,  the  party  must  demonstrate  that  it  will  offer  the  evidence  for  a  



                                  

permissible  purpose  other  than  to  show  that  a  party  acted  in  conformity  with  the  



                                                                                                                   

propensity implied by the prior bad acts.  But not just any non-propensity purpose will  



                                                                              

suffice  to  bring  the  evidence  into  court  through  Rule  404(b)(1)'s  limited  carve-out.  



                                                                                                             

Rather, the proffered non-propensity purpose must pass a threshold of significance that  



                                                                                                                        

adequately protects against the unavoidable prejudicial effect of evidence of prior bad  



       12  

acts. 



          9          Coleman v. State, 621 P.2d 869, 874 (Alaska 1980).  



          10        See   Oksoktaruk v. State, 611 P.2d 521, 524 (Alaska 1980) ("[T]he rule                        



regarding evidence of prior crimes is a 'rule of exclusion of evidence and not one of   

admission . . . .' " (quoting                United States v. Burkhart, 458 F.2d 201, 204 (10th Cir.  

1972))).  Like all presumptions, this presumption consists of an initial allocation of  

burden and a quantum of production required to overcome the presumption.  B 

                                                                                                                          LACK 'S  

LAW DICTIONARY 1304 (9th ed. 2009).  



          11  

                                                                                                    

                     This discussion addresses only civil cases.  I do not address the analysis of  

Rule  404(b)  following  an  amendment  in  1991  that  may  alter  the  application  of  

Rule 404(b) in criminal cases.  See ch. 79,  1(c), SLA 1991.  



          12         Oksoktaruk,  611  P.2d  at  524  ("If  prior  crimes  were  found  admissible  



whenever offered to prove a fact classified as material to the prosecution's case, 'the  

                   

underlying  policy  of  protecting  the  accused  against  unfair  prejudice  .  .  .  [would]  

evaporate through the interstices of the classification.' " (alteration in original) (quoting  

M 

                                                                                    

    CCORMICK ON EVIDENCE  190, at 453 (Edward W. Cleary et al. eds., 2d ed. 1972))).  



                                                               -25-                                                          6910
  


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

                    Second, even if evidence of prior bad acts satisfies Rule 404(b)(1)'s limited  



                                                                                     

carve-out for non-propensity uses, the evidence must still satisfy Rule 403's requirement  



                                                                       13  

that   it   be   more   probative   than   prejudicial.                         Moreover,   we   have   held   that  



                                                                                               

Rule 404(b)(1)'s presumption of inadmissibility of evidence of prior bad acts alters the  



                                               14  

normal Rule 403 balancing test.                    Because evidence of prior bad acts is presumed to be  



                                                     

prejudicial, "[t]enuous or marginal probative value of prior crimes evidence must never  



                                                                                                                         15  

                                                                                                                             In  

be allowed to serve as an excuse for implanting prejudice in the minds of the jury." 



                                                                                                            

light of Rule 404(b)(1), a party seeking to pass Rule 403's test must do more than that  



                                  16  

rule normally requires.    The party seeking to introduce evidence of prior bad acts must  



          13        See, e.g., Hess v. State , 20 P.3d 1121, 1128 (Alaska 2001) (addressing       



whether attempted introduction of prior acquittal was more probative than prejudicial  

after assuming that the evidence would meet the requirements of Rule 404(b)'s carve- 

outs); see also Commentary Alaska E. R. 404(b) ("Of course, 'other crimes' evidence  

admissible under Rule 404(b) may be excluded under Rule 403.").  



          14  

                                                                                                

                    Lerchenstein  v.  State ,  697  P.2d  312,  315  n.2  (Alaska  App.  1985)  

                                                                  

("Evidence Rule 404(b) modifies the normal balancing process under Evidence Rule 403  

by requiring the trial court to begin with the assumption that the evidence should be  

excluded."),  aff'd,  726  P.2d  546  (Alaska  1986)  ("[Lerchenstein ]  is  affirmed  for  the  

reasons  expressed  therein.");  see  also  Coney  v.  Municipality  of  Anchorage,  Mem.  

Op. & J. No. 566, 1991 WL 11657239 (Alaska, July 24, 1991) ("Even after the trial  

                                                                                                             

court determines that the evidence may tend to prove a material fact, a presumption  

remains that the evidence is not admissible. [Lerchenstein ]. This presumption arises from  

the  recognition  that  propensity  evidence  always  carries  some  amount  of  unfair  

prejudice.").  



          15        Freeman v. State , 486 P.2d 967, 979 (Alaska 1971).  



          16        Normally, Rule 403 carries a slight presumption of admissibility that is  



overcome upon a showing that the evidence's prejudicial effect is "demonstrably greater"  

than  its  probative  effect.    See  supra  note  3.    But  the  presumption  created  by  

                                                   

Rule 404(b)(1) flips the initial burden, presuming the inadmissability of evidence of prior  

bad  acts,  and  also  raises  the  bar  for  the  production  necessary  to  overcome  that  

                                                                                                            (continued...)  



                                                             -26-                                                        6910
  


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

show that the evidence's use for non-propensity purposes will be substantial enough to  

                                                                                                

outweigh the substantial risk of prejudice that such evidence always carries.17  



                                                                  

                   In sum, Rule 404(b)(1) creates a presumption of exclusion of evidence of  



                                                                                                         

prior bad acts until the party seeking to use that evidence proves that the evidence is  



significantly more probative of a substantial non-propensity purpose than it is prejudicial.  



                                                                                         

In this way, the two steps discussed above - first qualifying for a Rule 404(b)(1) carve- 



                                                                                                     

out  for  non-propensity  purposes,  and  then  satisfying  Rule  403's  balancing  test  as  



                                                                                                  

sufficiently more probative than prejudicial - can both be seen as addressing the same  



                                                          

question: whether the party seeking to use evidence of prior bad acts has satisfied the  



high burden imposed by the rules of evidence that presume that such evidence is too  



prejudicial and should be excluded.  



                   In this case, I would hold that the superior court abused its discretion by  



                                                                                               

denying Conley's motion in limine to exclude evidence of prior bad acts under Alaska  



                                                                                                 

Rules  of  Evidence  403  and  404(b)(1).    First,  ACS  failed  to  meet  its  burden  of  



                                                                      

demonstrating that the evidence should come in for a significant non-propensity purpose  



within  Rule  404(b)(1)'s  limited  carve-out.    One  of  ACS's  proffered  non-propensity  



                                   

purposes was to show that Conley's motor neuron disease preexisted the accident, as  



          16        (...continued)  



presumption.  



          17        Oksoktaruk, 611 P.2d at 524-25 ("Our cases are thus in accord with the  



orientation of a leading treatise-writer, who urges that a prior crime be 'so related to the  

                                                                                                       

crime charged in point of time or circumstances that evidence thereof is significantly  

useful in showing the defendant's intent in connection with the crime charged,' before  

evidence of the prior crime is judged more probative than prejudicial." (footnote and  

citation  omitted));  Lerchenstein ,  697  P.2d  at  318  ("Even  if  deemed  relevant  for  a  

permissible purpose under Evidence Rule 404(b), however, the evidence should only  

have been introduced if its probative value outweighed its prejudicial impact to such an  

                                    

extent that the presumption favoring exclusion was overcome.").  



                                                            -27-                                                       6910
  


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

                            

revealed by the work-related incidents at issue in this case.  But ACS never offered any  



reason  to  conclude  that  these  work-related  incidents  were  relevant  for  that  purpose  



                                                                                                         

beyond merely asserting that "[t]he [work-related] incidents . . . are consistent with the  



                                                                                      

onset of the symptomology of [the motor neuron disease]."  ACS offered no medical  



                                                                                                                             

opinions supporting this assertion of a non-propensity purpose.  And the course of the  



trial   revealed   that   ACS's   proffered   non-propensity   purpose   was   insubstantial,  



nonexistent, or pretextual.  ACS's own medical expert testified that, in her opinion,  



Conley's motor neuron symptoms began in July 2007, years after these work-related  



incidents.  



                                                                                                          

                      ACS's second proffered non-propensity purpose for the evidence of prior  



                                                                                                                        

bad acts was to show that Lynden negligently employed Conley despite knowing that he  



                              

"was an accident waiting to happen."  But we have previously held that evidence of prior  



                                                              

bad acts in job performance may be admissible to show that the employer should have  



                                                                                                                        

known of the employee's likelihood of causing injury only where those bad acts display  



                                                                                                                   18  

                                                                                                                       The misconduct  

the specific type of conduct that caused the injury in the present case. 



                                                                                                     

on display in the work-related incidents in this case was not of the type that should have  



                                                                                        

put an employer on notice that Conley was likely to injure himself in the way ACS  



alleges occurred in this case.  



                                                                                                  

                      Moreover, ACS failed to meet its burden of demonstrating that the use of  



                                                                                                                   

the evidence would be significantly more probative than prejudicial and thus overcome  



the presumption that such evidence shall be excluded.  ACS introduced evidence that  



           18         See  Ayuluk v. Red Oaks Assisted Living, Inc. , 201 P.3d 1183, 1194-95  



(Alaska 2009).  In other words, an argument that an employer tortiously employed an   

employee is not an automatic license to rummage through the employee's work history.       

Only those prior bad acts that speak directly to the type of injury allegedly caused by the       

employee may be admitted under Alaska Rule of Evidence 404(b)(1).  



                                                                     -28-                                                                6910
  


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

                                                                                                         

Conley had a record of prior accidents and disciplinary problems at work.  Such a record  



                                                                            

is extremely prejudicial to Conley's claim that, in this case, he was not responsible for  



his injury.  That ACS actually used that evidence to argue to the jury that "Mr. Conley  



                              

is somebody who would do this" only confirms what was obvious when the superior  



                                                                                                                       

court ruled on Conley's motion in limine:  This evidence had extraordinary potential to  



                 

prejudice  the  jury  with  the  implication  that  Conley's  actions  in  this  case  were  in  



conformance with the prior acts detailed in evidence.   



                                  

                     On the other side of the balance, the evidence of prior bad acts had only  



                                                                                                    

marginal, if any, probative value for non-propensity purposes.  One of ACS's proffered  



                                                                                                                   

non-propensity purposes was to show that Conley's motor neuron disease preexisted the  



                                                                                                      

accident.  But the handful of incidents documented in these work reports over the course  



                                                                                                 

of years (such as a slip and fall on ice, a foot slipping off a  brake pedal, missing a  



                                                           

delivery, taking too many breaks, or becoming angry after dropping a heavy object on  



                                                                                                                               

one's foot) can hardly be understood as providing more than extremely tenuous, if any,  



                                                            

support for ACS's argument.  ACS's second proffered non-propensity purpose for the  



                                                            

evidence of prior bad acts was to show that Lynden negligently employed Conley despite  



                                                                  

knowing that he "was an accident waiting to happen."  But almost all of the evidence was  



                                                             

irrelevant to this claim.  Being written up for losing his temper, taking excessive breaks,  



                                                                                      

missing a delivery, and slipping on ice while wearing the required traction devices are  



                                                     

not indicative of the accident in this case.  And the other two incidents - dropping a  



                                          

plate of metal on his foot and throwing a hammer in anger, and getting his foot caught  



                                                                       

between the accelerator and brake pedals of a vehicle and damaging a sprinkler - are  



of only marginal probative value in assessing whether an employer tortiously kept an  



                                                                 -29-                                                           6910
  


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

employee on the payroll.               On balance, I would hold that "the slight probative value such     

evidence may have is far outweighed by its potential for prejudice."19  



                                                                             

                    Today's court seemingly ignores the purposes behind Evidence Rules 403  



and 404 and thus reaches the wrong result.  The court relies on the notion that "each  



piece of disputed evidence could reasonably be seen to have some permissible relevance"  



                                                                                                                  

to a non-propensity argument, such as ACS's contentions that Lynden was negligent in  



employing Conley and ACS's theory that symptoms of Conley's motor neuron disease  



                                                     20  

manifested  prior  to  the  accident.                      The  court  then  concludes  that  ACS  "at  least  

demonstrated  that  the  evidence  was  relevant  to  non-propensity  purposes."21                                            But  



Rule  404(b)  requires  more  than  a  demonstration  of  mere  relevance  to  some  non- 



                                                                                                

propensity purpose in order to qualify for its limited carve-out.  And as explained above,  



                                                                        

the proffered evidence was only minimally, if at all, relevant for non-propensity purposes  



and did not surpass the presumption of inadmissability imposed by Rule 404(b)(1).  



                                                                                              

                    The court also concludes that it cannot say that the superior court abused  



its discretion by determining that the probative value of the evidence outweighed its  



                           22  

prejudicial effect.            But the court provides no explanation for this determination and  



never estimates the prejudicial or probative value of the evidence.  Rather the court  



                                                                                      

merely  states  that  it  cannot  look  to  ACS's  actual  use  of  the  evidence  in  trial  when  



                                                                                                                       

evaluating the superior court's decision to reject Conley's motion in limine, and then  



states that the superior court was entitled to assume that "ACS would follow the rules"  



          19        Fields v. State , 629 P.2d 46, 50 (Alaska 1981).  



          20        Op. at 10 (emphasis added).  



          21        Id. at 11.  



          22        Id. at 13.  



                                                              -30-                                                         6910
  


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

                                                                                              23  

                                                                                                           

and that "Conley would . . . raise appropriate objections."                                        But we have held that once  



                                                                        

a trial court has denied a party's motion in limine, the party has no duty to continue to  



                                                                                                                24  

object during trial in order to challenge the initial denial on appeal.                                             And the court's  



entire line of reasoning fails to explain or resolve how the prejudicial and probative  



                                                                                  

values of the evidence should be weighed.  That weighing process must occur in order  



to decide whether the superior court abused its discretion in denying Conley's motion  



                25  

in limine.          In my view, the superior court abused its discretion because any marginal  



probative value of the evidence was far outweighed by its likely prejudicial effect.  



                                                                                                                    

                      Moreover, the superior court compounded the harm of its admission of this  



                                                                                                                               

evidence by failing to identify any permissible non-propensity purpose for which the  



                                                                                                                              

evidence would be received.  It was the superior court's responsibility to inform the  



parties of the permissible non-propensity basis for its admission of the evidence and to  



offer them an appropriate limiting instruction to ensure that the jurors considered the  



evidence  only  for  proper  non-propensity  purposes.    Its  failure  to  do  so  constitutes  



                                                                                                    

additional error flowing from the superior court's denial of Conley's motion in limine  



to exclude the evidence of prior bad acts.  



                                                       

                      Even when a court denies a motion in limine to exclude evidence of prior  



                                                                                                                                    

bad acts, the court should take contemporaneous steps to ensure that the use of that  



                                                                                              

evidence does not stray beyond the bounds imposed by the Alaska Rules of Evidence.  



           23         Id.  



           24         Landers v. Municipality of Anchorage                           , 915 P.2d 614, 617 (Alaska 1996).   



           25  

                              

                      See Liimatta v. Vest , 45 P.3d 310, 313 (Alaska 2002) ("When reviewing the  

                                                                                                                     

exclusion of evidence under Evidence Rule 403 as unfairly prejudicial, we first consider  

                                                                   

the relevance of the [excluded evidence] and then determine whether its prejudicial effect  

                          

so outweigh[s] its probative value that admission by the trial judge constitute[s] a clear  

abuse of discretion." (quotation marks and citations omitted) (alterations in original)).  



                                                                    -31-                                                               6910
  


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

                                                                                                        

In a case involving extremely prejudicial evidence of prior bad acts, we have praised a  



                                                  

trial court judge who "indicated his awareness of th[e] requirement[s] [of the Rules of  



                                                                           

Evidence] by carefully taking steps to ensure that the testimony regarding the prior rape  



was  properly  limited  in  its  presentation  before  the  jury,  in  order  to  minimize  its  



                                                                                                   

prejudicial effect," including by "admonish[ing] the jury as to the limited purpose of the  



evidence immediately prior to its presentation and also [giving] a written cautionary  



                                                 26  

                                                                                                                   

instruction as to its limited use."                  And it is well-established in the federal courts that  



failure  to  issue  a  limiting  instruction  sua  sponte  in  order  to  prevent  the  misuse  of  



                                                                                                               27  

                                                                                                                   Indeed, in  

evidence of prior bad acts can constitute plain error in at least some cases. 



                

the Sixth Circuit, trial courts must issue limiting instructions any time "Rule 404(b)  



                                               

evidence is received" in order to keep the use of that evidence within the bounds of the  



                           28  

                                                

rules of evidence.             As Justice Cardozo stated so eloquently over 140 years ago, "The  



                                                                            

practice of calling out evidence for one purpose, apparently innocent, and using it for  



another, which is illegal, is improper; and, if it is clear and manifest that the avowed  

object is colorable merely, its admission is error."29  



                    In sum, it was error to admit this evidence of prior bad acts at all, and that  



error was compounded by the admission of the evidence without appropriate steps to  



protect against improper use of that evidence.   



                                               

                    ACS's improper use of the evidence of prior bad acts at trial in this case  



                                                                                                          

highlights the gravity of the superior court's error in denying Conley's motion in limine.  



          26        Coleman v. State, 621 P.2d 869, 876 (Alaska 1980).  



          27        See, e.g., United States v. Bobbitt, 450 F.2d 685, 691 (D.C. Cir. 1971).  



          28        See   United States v. Hemphill, 76 F. App'x 6, 13 (6th Cir. 2003).  



          29  

                                                                          

                    People v. Zackowitz , 172 N.E. 466, 469 (N.Y. 1930) (Cardozo, J.) (citation  

omitted).  



                                                              -32-                                                         6910
  


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

ACS stated during closing arguments, "Mr. Conley really was an accident waiting to  



happen.  Mr. Conley is somebody who would do this."  This is a clear case of using  



evidence of prior bad acts to establish propensity and then argue that a litigant has acted  



                                                                                                                          

in conformance therewith.  Indeed, it is hard to imagine a clearer example than stating  



that a litigant "is somebody who would do this."  The superior court's failure to issue a  



                                                                                       

limiting instruction sua sponte would constitute plain error if it were fairly raised to this  



                          30  

                                                                                                                        

court on appeal.               Even if Conley's appellate brief in this case does not fairly raise a  



                                                                                                                       

plain-error argument, ACS's improper use of the evidence at trial confirms what was true  



                                              

in this case from the outset: This evidence had such high potential for prejudice and such  



low probative value of any non-propensity purpose that the evidence should have been  



           30         "Absent a finding of plain error, . . . appellant's failure to request a limiting           



instruction at trial waived that claim [that use of evidence of prior bad acts for propensity            

purposes should be prohibited by a limiting instruction]."                                     Adkinson v. State , 611 P.2d  

528, 533 (Alaska 1980) (footnote omitted) (alterations and omissions added).  



                      "Plain error is an error that (1) was not the result of intelligent waiver or a  

tactical  decision  not  to  object;  (2)  was  obvious;  (3)  affected  substantial  rights;  and  

(4) was prejudicial."  Adams v. State , 261 P.3d 758, 764 (Alaska 2011).  Nothing in our  

precedent  precludes  the  conclusion  that  it  is  plain  error  to  fail  to  issue  a  limiting  

instruction sua sponte when the use of evidence of prior bad acts was so prejudicial and  

so minimally probative as it was in this case.   



                      The error in this case would have been obvious because the evidence was  

so highly prejudicial and of such marginal probative value, and because Conley would  

have been entitled to a limiting instruction had he requested one under Alaska Rule of  

Evidence 105 such that it would have been reversible error for the superior court to deny  

                                                             

such a request.  Conley's right to such an instruction was "so obvious that the trial court  

                           

should have noticed it despite the absence of an objection."  Adams , 261 P.3d at 772.  

                                                                                                                         

The error was prejudicial and affected substantial rights because evidence of prior bad  

                                                                                  

acts is always  substantially prejudicial.  Coleman, 621 P.2d at 874.  Finally, there is no  

                                              

indication that Conley failed to object for strategic purposes.  How it could possibly  

                                                                                      

benefit Conley to forego a limiting instruction issued by the trial court in favor of his  

                                                                                                            

lawyer's own admonitions is left unclear.  



                                                                   -33-                                                             6910
  


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

excluded following Conley's motion in limine.                                                And when the superior court admitted   



the evidence, the superior court had a duty to carefully delineate the purposes for which   



the evidence could be used and to enforce those limitations through appropriate orders        



and instructions.  Failure to do so compounded the reversible error of admission.  



                                                                

                          For these reasons, I respectfully dissent.  I would reverse and remand for  



a new trial.  



                                                                               -34-                                                                          6910
  

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