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City of Bethel v. Peters9/3/2004
gurement 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.
Statements in closing arguments to which opposing counsel made no objection are reviewed for plain error.
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 "encourag defendants to take safety precautions after accidents." The City claims that the rule should have barred the admission of the "Accident/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 " t would be helpful, to elders, if at least 3 more safety bars were 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. 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 or salting and sanding an allegedly icy walkway after someone had fallen; 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. These courts rely in part on the rule's phrase "measures are taken," reasoning that " emedial measures are those actions taken to remedy any flaws or failures." Under this reasoning, an investigation or recommendation is not a concrete action; a report on these activities "by itself . . . 'would' not 'have made the event less likely to occur.' " These courts therefore do not exclude reports of post-accident investigations and recommendations, often among "the best and most accurate sources of evidence and information" for injured parties.
Other courts disagree, holding that evidence of the parts of a report detailing investigatory findings and recommendations should be excluded as subsequent remedial measures. These latter courts rely on the sensible proposition that in many cases, "the investigation is the prerequisite to any remedial safety measure." They reason that admitting such post-accident evidence would discourage defendants from carefully investigating accidents and considering how to prevent them in the future; th
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