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City of Bethel v. Peters9/3/2004
No. 5829
I. INTRODUCTION
This appeal of a jury verdict in a tort suit against the City of Bethel presents the question whether recommendations for action contained in a post-accident report are excludable as subsequent remedial measures under Alaska Rule of Evidence 407, the question whether the superior court properly submitted the issue of severe disfigurement to the jury, and a question concerning inappropriate arguments during the plaintiff's closing. Because the superior court did not err in its rulings, we affirm the judgment.
II. FACTS AND PROCEEDINGS
A. Factual History
On July 14, 2000, Louise Peters fell in the shower area of 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 "Accident/Incident Investigation Report," in which she recommended the installation of safety bars in the shower area. Safety bars were later installed. Peters sued the City in December 2000, alleging negligence in its maintenance of the shower.
B. Procedural History
The case was tried before a jury in August 2002. The thrust of Peters's theory of the case was that safety bars in the shower would have prevented the fall and that the City was therefore negligent in failing to install the safety bars before the accident. To this end, Peters introduced into evidence a redacted version of the accident report in which the section detailing the "corrective action taken" was blacked out. 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 non-economic 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. 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." The superior court's decision whether to give the issue of severe disfi
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