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City of Bethel v. Peters9/3/2004
of unattractiveness sufficient to bring negative attention or embarrassment. Contrary to the City's suggestion, a plaintiff is not required to introduce evidence showing how particular people react to the injury; the court and the jury themselves supply the views of the reasonable person.
In making the threshold determination of whether to submit the question of severe disfigurement to the jury, a trial court must balance the twin objectives of restraint and fairness highlighted by the legislature's declaration of the purposes of the tort reform act that included the damage cap: "discouraging frivolous litigation . . . without diminishing the protection of innocent Alaskans' rights to reasonable, but not excessive, compensation for tortious injuries." The legislature made a policy determination that only those plaintiffs with severe disfigurements should recover beyond the cap. The question should go to the jury whenever the disfigurement could reasonably be characterized as severe. We cannot say that the evidence of Peters's contorted and scarred leg provides us with a definite and firm conviction that no reasonable juror could think it a severe disfigurement. The superior court did not abuse its discretion in submitting the question to the jury.
D. There Was No Plain Error Concerning Peters's Closing Argument
In his closing arguments, Peters's attorney made two arguments that the City claims warrant reversal. The City did not object to the statements at the time, so the only decision of the trial court available for our review is the court's failure to take corrective action on its own motion. Because the City waived its objections by its silence at trial, we review the trial court's inaction only for plain error. " lain error exists where an obvious mistake has been made which creates a high likelihood that injustice has resulted." Before this court will notice and correct a waived error, the likelihood of injustice must be clear, such that we do not need to "speculate on whether the error altered the result."
The City first claims that Peters's attorney improperly invited the jury to infer liability because Louise Charles, the City director of senior services, rather than the city manager, was Bethel's representative at the defendant's counsel table. "[The city manager]'s not sitting there," Peters's attorney said, "because it's the belief of the city that you'd be much more likely to award damages to Mrs. Peters if the city manager was sitting there." Although the statement is inappropriate and relies on facts that are neither relevant nor admitted into evidence, we will not correct the trial court's failure to take corrective action sua sponte. The City's claim that the statement created a high likelihood of injustice because Peters's strategy was to "absolve . . . Charles from responsibility and blame" is unpersuasive. We cannot determine whether the jury relied on this "absolution" argument in its verdict without impermissible speculation. There was no plain error in allowing this statement to pass.
In the second incident, Peters's attorney derided the $30,000 damage figure suggested by the City's attorney in his closing, saying it " akes a guy wonder how much Mr. Koziol makes in that year when [Peters is lying] in bed, you know? . . . It's an insult to suggest [$30,000 is] what her injury was." The City asserts that the suggestion about an attorney's salary is "so beyond the boundary of reasonable argument as to constitute plain error." We agree that the statement was improper and an undue personal attack on the City's attorney, and if the City had made a contemporaneous objection, the superior court should have taken corrective action. But the
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