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City of Bethel v. Peters9/3/2004
ey would then be less equipped to make the safety improvements the rule is designed to promote. This broader interpretation of the rule's exclusionary scope may advance its goals, but it collides with another evidentiary policy, the principle of wide admission of relevant evidence, and with the language of the rule.
Under Rule 402, our "Rules of Evidence start from the proposition that all relevant evidence is admissible." Rules of exclusion like the one we consider today are merely exceptions to this general rule. Post-accident investigations and recommendations are often relevant to the issue of negligence and, by revealing facts about the causes of an accident and the defendant's concerns about it, may be particularly useful to factfinders. The general presumption in favor of admissibility strongly suggests, therefore, that such evidence should be admitted, despite any possible disincentive to safety improvements.
Between these two competing policies, the language of the rule favors admissibility. Rule 407 prohibits evidence of "measures" that have been "taken." We take "measures" to mean concrete actions, and to leave outside the rule's prohibition preliminary investigations and recommendations pointing toward those actions. Even if post-accident investigations and reports were considered "measures," the rule would not reach them. The rule excludes "subsequent measures" that would have reduced the likelihood of the accident if they had been "taken previously," meaning before the accident. "One cannot investigate an accident before it occurs, so an investigation and report . . . cannot be a measure that is excluded."
The language of Rule 407 and the general presumption of admissibility laid down by Rule 402, along with persuasive authority from other courts, compel us to hold that evidence of post-accident investigations and recommendations are not automatically excluded as subsequent remedial measures.
Like all other evidence, investigations and recommendations are subject to the balancing test of Alaska Rule of Evidence 403, which provides that relevant evidence "may be excluded if its probative value is outweighed by the danger of unfair prejudice." The relation between admissible investigations and recommendations on the one hand and excluded measures on the other requires particular care in this balancing. If the jury is given evidence of the recommendations but not of the actual fix, there is a danger that jurors may draw the unfair inference that the recommendations were ignored. In deciding whether or not to admit recommendations, the trial court should carefully consider the likelihood of this inference and the prejudice it would cause. In this case, the superior court weighed relevance against prejudice and determined that Charles's report, redacted to exclude evidence of the remedial measures taken, was admissible. We find no error in its determination.
C. The Superior Court Did Not Abuse Its Discretion in Submitting the Question of Severe Disfigurement to the Jury
Under AS 09.17.010(b), a plaintiff in a personal injury or wrongful death action may recover no more than $400,000 in compensation for non-economic damages. This cap is raised to $1,000,000 if "the damages are awarded for severe permanent physical impairment or severe disfigurement." Over the City's objection, the superior court instructed the jury on severe disfigurement. The jury found by special interrogatory that Peters had suffered severe disfigurement and awarded $575,000 in non-economic damages. The City challenges the superior court's submission of the issue to the jury.
The superior court must make a threshold determination of severe disfigurem
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