City of Bethel v. Peters

97 P.3d 822, 2004 Alas. LEXIS 106, 2004 WL 1950365
CourtAlaska Supreme Court
DecidedSeptember 3, 2004
DocketS-10864
StatusPublished
Cited by17 cases

This text of 97 P.3d 822 (City of Bethel v. Peters) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Bethel v. Peters, 97 P.3d 822, 2004 Alas. LEXIS 106, 2004 WL 1950365 (Ala. 2004).

Opinion

OPINION

FABE, Justice.

I. INTRODUCTION

This appeal of a jury verdict in a tort suit against the City of Bethel presents the question whether recommendations for action contained in a post-accident report are ex-cludable as subsequent remedial measures under Alaska Rule of Evidence 407, the question whether the superior court properly submitted the issue of severe disfigurement to the jury, and a question concerning inappropriate arguments during the plaintiffs closing. Because the superior court did not err in its rulings, we affirm the judgment.

II. FACTS AND PROCEEDINGS

A. Factual History

On July 14, 2000, Catherine Peters fell in the shower area of Bethel’s city-owned senior center. She suffered multiple fractures of her right leg. She required surgery in Anchorage to place both internal and external hardware in her leg and for a bone graft. Her recovery involved several return trips to Anchorage to remove the external fixator apparatus and for follow-up exams. Her leg remains bent and her activity has been curtailed.

Following Peters’s accident, Louise Charles, the City’s director of senior services, prepared an “AccidenVIncident Investigation Report,” in which she recommended the installation of safety bars in the shower area. Safety bars were later installed. Peters sued the City in December 2000, alleging negligence in its maintenance of the shower.

*825 B. Procedural History

The ease was tried before a jury in August 2002. The thrust of Peters’s theory of the ease was that safety bars in the shower would have prevented the fall and that the City was therefore negligent in failing to install the safety bars before the accident. To this end, Peters introduced into evidence a redacted version of the accident report in which the section detailing the “corrective action taken” was blacked out. Peters’s attorney also questioned Charles and senior center administrative assistant Bev Bell, asking each whether soon after the accident she thought safety bars should be installed, and whether she had thought of it before the accident. In response to a question about her pre-accident thoughts, Charles volunteered that safety bars had in fact been installed after the accident. In his closing argument, Peters’s attorney argued that the City should have known before the accident that safety bars would make the shower area more safe. He mentioned the recommendations Louise Charles made in her report but never discussed the City’s actual installation of the bars after Peters’s fall.

In addition to the issues of negligence and contributory negligence, the superior court submitted to the jury, over the City’s objection, the question whether Peters suffered a severe disfigurement. The jury found that the City was eighty-seven percent at fault for the accident and that Peters did suffer severe disfigurement, awarding $575,000 in noneconomic damages. The City appeals from the jury verdict, claiming that Alaska Rule of Evidence 407 should have barred the admittance of the accident report, that the issue of severe disfigurement should not have gone to the jury, and that the court’s failure to correct a pair of statements made during Peters’s closing argument was plain error.

III. DISCUSSION

A. Standards of Review

The superior court’s decision to admit evidence is reviewed for abuse of discretion. 1 The correct scope or interpretation of a rule of evidence creates a question of law “to which this court applies its independent judgment, adopting the rule most persuasive in light of reason, precedent and policy.” 2 The superior court’s decision whether to give the issue of severe disfigurement to the jury, like the parallel determination of severe emotional distress in an intentional infliction of emotional distress action, is reviewed for abuse of discretion. 3 Statements in closing arguments to which opposing counsel made no objection are reviewed for plain error. 4

B. The Superior Court Properly Admitted the Recommendation Section of the Post-Accident Report.

Alaska Rule of Evidence 407 provides, in pertinent part: “When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence .... ” Evidence of subsequent remedial measures is relevant to the question of negligence, but it is excluded in order to “eneourag[e] defendants to take safety precautions after accidents.” 5 The City claims that the rule should have barred the admission of the “Aecident/Incident Investigation Report” completed by Louise Charles. The report includes sections headed “What Should Be Done?” and “Corrective Action Taken.” The superior court allowed the introduction of the report with the “Corrective Action” section redacted. In the ‘What Should Be Done?” section, which remained intact in the admitted version of the report, Charles wrote that “[i]t would be helpful, to elders, if at least 3 more safety bars were *826 installed on the walls in the sauna area and in the bathroom areas. Elders could then support themselves if necessary.”

Evidence showing that the City followed Charles’s recommendation and installed the safety bars is plainly barred by the rule. The City initially argues that the recommendation for safety bars in the report is this type of evidence and claims that the report “reveals the actual safety improvement later installed.” But the redacted report only indicated that Charles suggested more safety bars. It did not reveal to the jury that the City followed her advice, and therefore was not excludable as evidence of the installation of the safety bars. 6 Rule 407 excludes the challenged section of the report only if the recommendations themselves are covered by the rule.

Our previous cases applying this rule have concerned concrete fixes like placing barriers and flashing lights around a hole where an employee had been injured 7 or salting and sanding an allegedly icy walkway after someone had fallen; 8 we have never considered whether Rule 407 reaches a section of a post-accident report containing an investigation into an accident’s causes or a recommendation for an improvement. Many courts applying analogous rules of evidence have held that the rule’s scope is limited to improvements actually implemented. 9 These courts rely in part on the rule’s phrase “measures are taken,” reasoning that “[rjemedial measures are those actions taken to remedy any flaws or failures.” 10 Under this reasoning, an investigation or recommendation is not a concrete action; a report on these activities “by itself ...

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Bluebook (online)
97 P.3d 822, 2004 Alas. LEXIS 106, 2004 WL 1950365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-bethel-v-peters-alaska-2004.