You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Walden v State Dept. of Transportation (07/13/2001) sp-5428
Walden v State Dept. of Transportation (07/13/2001) sp-5428
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
CONNIE WALDEN, individually )
and as Guardian of Shawn )
Walden, )
) Supreme Court No. S-8575/8576
Appellant/Cross-Appellee,)
) Superior Court No.
v. ) 3AN-95-8876 CI
)
DEPARTMENT OF TRANSPORTATION, )
STATE OF ALASKA, ) O P I N I O N
)
Appellee/Cross-Appellant.) [No. 5428 - July 13, 2001]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge.
Appearances: Peter J. Maassen, Ingaldson
Maassen, and Peter Gruenstein, Gruenstein &
Hickey, Anchorage, for Appellants/Cross-Appellee. Andrew Guidi,
Tim Lamb, Clyde E. Sniffen, Jr., Delaney, Wiles, Hayes, Gerety,
Ellis & Young, Inc., Anchorage, for Appellee/Cross-Appellant.
Before: Matthews, Chief Justice, Fabe, and
Carpeneti, Justices. [Eastaugh and Bryner,
Justices, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Connie Walden, (Walden) individually and on behalf of her
minor son, Shawn Walden, appeals the superior court's judgment
following a jury trial that found the State of Alaska, Department
of Transportation (DOT) not liable for injuries sustained by Shawn
in a 1993 motor vehicle accident on the Parks Highway. Walden
claims that the superior court erred in granting DOT's motion for
partial summary judgment concerning her claim that DOT was
negligent in failing to post a warning sign at the curve where the
accident occurred. Walden further claims that she should be
granted a new trial because the superior court abused its
discretion by: (1) excluding evidence of prior accidents at the
subject curve; (2) excluding a DOT Design Study Report that
contained evidence that DOT had notice of a defect in the curve
where the accident occurred, and failing to take steps to mitigate
the effects of this ruling; (3) admitting testimony by defense
expert John Myers regarding tests conducted by Myers and the speed
of Mel Walden (the driver of the car in which Shawn was a
passenger); (4) admitting evidence of the psychological condition
of witness Clay Walden; and (5) excluding DOT's interrogatory
answer regarding tests conducted by DOT's attorneys.
Because the trial court properly granted DOT's motion for
partial summary judgment on the warning-sign issue and did not
abuse its discretion in making any of the rulings that Walden
challenges, we affirm. [Fn. 1]
II. FACTS AND PROCEEDINGS
A. Facts
In the late afternoon of December 30, 1993, Mel Walden
was driving north on the Parks Highway in a 1990 Hyundai Excel.
His brother, Clay Walden, and Mel's 16-year-old son, Shawn Walden,
were passengers in the car.
Driving conditions on the highway were generally good,
though there were occasional patches of ice and wetness on the
road. The posted speed limit was 55 m.p.h. Mel was driving
between 45 and 55 m.p.h.
Mel slowed to 50 m.p.h. as he approached the curve near
Mile 54, north of the Big Lake turnoff. As the Hyundai entered the
curve, it hit a patch of ice and began to fishtail. Mel regained
control of the car, but almost immediately lost control again as
the car hit a second patch of ice. The car spun around and slid
across the oncoming lane. Seeing a southbound vehicle coming
directly towards him, Mel downshifted and attempted to avoid a
collision by accelerating into the ditch on the left side of the
highway. Before Mel reached the ditch, the other vehicle struck
the Hyundai's right rear door, near where Shawn was sitting.
Shawn suffered catastrophic brain injuries as a result of
the collision. He was hospitalized until March 1994 and still
requires extensive medical care. Mel and Clay each received minor
injuries.
B. Proceedings
Connie Walden, individually and in her capacity as
Shawn's representative, brought suit against DOT in October 1995,
alleging that DOT should have posted a warning sign at the curve
and that DOT's negligent maintenance of the highway curve was a
substantial factor in Mel's loss of control. DOT moved for partial
summary judgment, contending that it was not legally required to
post a curve warning sign at the subject curve, and that its
decision to use Willow sand to improve road traction was
discretionary and shielded by sovereign immunity. The superior
court granted the motion as to the curve but denied it as to the
sand.
The case was heard by a jury in November and December
1997. The jury determined that Walden and Shawn had suffered
damages in excess of $8 million, [Fn. 2] but found Mel Walden
entirely liable for the accident and did not apportion any
liability to DOT. The trial court denied Walden's motion for a new
trial.
Walden appeals.
III. STANDARD OF REVIEW
We review the trial court's decision on DOT's partial
summary judgment motion de novo to determine whether there were any
genuine issues of material fact and whether DOT was entitled to
judgment as a matter of law. [Fn. 3] In reviewing questions of
law, we apply our "independent judgment and adopt the rule of law
that is most persuasive in light of precedent, reason, and policy."
[Fn. 4]
"The trial court's jury instructions generally involve
questions of law [that] are subject to the independent judgment
standard of review." [Fn. 5]
We review the trial court's exclusion or admission of
evidence for an abuse of discretion. [Fn. 6] We will reverse a
trial court's evidentiary ruling only when we are left with a
definite and firm conviction that the trial court erred in its
decision. [Fn. 7] We also review a motion to reopen discovery for
an abuse of discretion. [Fn. 8]
IV. DISCUSSION
A. The Superior Court Properly Granted DOT's Motion for
Partial Summary Judgment.
Walden contends that the superior court erred in granting
DOT's motion for partial summary judgment on her claim that DOT was
negligent in failing to place a curve warning sign and speed
advisory plate at the Mile 54 curve. [Fn. 9] But DOT was entitled
to judgment as a matter of law unless Walden could establish each
element of her prima facie negligence case. Here, she failed to
establish a crucial element -- the existence of a duty on DOT's
part to place a curve warning sign and advisory speed plate at the
subject curve.
In order to successfully resist DOT's motion for summary
judgment, Walden was required to set forth specific facts showing
that (1) DOT owed her a duty of care; (2) DOT breached this duty;
(3) the breach was a legal cause of the accident; and (4) she
suffered damages as a result. [Fn. 10] Walden failed to set forth
facts showing that DOT had a duty to post warning signs at the
curve.
In support of its motion for summary judgment, DOT argued
that it did not have a duty to place a curve warning sign and speed
advisory plate at the subject curve. Alaska Statute 19.10.040
states that DOT must follow the Alaska Traffic Manual, which
consists of the Manual on Uniform Traffic Control Devices (MUTCD)
and the Alaska supplement. [Fn. 11] According to the MUTCD, curve
warning signs "may be used where engineering investigations . . .
show the recommended speed on the curve to be greater than 30
m.p.h. and equal to or less than the speed limit established by law
or by regulation for that section of the highway." [Fn. 12]
The Alaska Supplement sets out "ball bank" testing as a
method for determining the recommended or safe speed on existing
curves. [Fn. 13] DOT expert Ken Jacobson conducted "ball bank"
testing on the Mile 54 curve and concluded that it is safe to drive
it at 50 m.p.h. The MUTCD provides that a curve warning sign "may"
be used in situations such as the instant case, in which the
recommended speed of the curve determined by "ball bank" testing,
50 m.p.h., is greater than 30 m.p.h. and less than the posted speed
limit of 55 m.p.h. Because the MUTCD defines "may" as a
"permissive condition" for which "no requirement for design or
application is intended," [Fn. 14] DOT argues that the permissive
language of this MUTCD section clearly does not impose a duty upon
DOT to install a curve warning sign.
Walden failed to establish facts that dispute DOT's claim
and demonstrate that DOT had a duty to place a warning sign at the
curve. Edward Stevens, Walden's only expert providing evidence on
this issue, conducted "ball bank" testing on the Mile 54 curve and
reached the same result as DOT's experts, concluding that drivers
can safely enter the corner and not feel discomfort on the curve at
a speed of 50 m.p.h. The posted speed limit for the section of the
Parks Highway at issue is 55 m.p.h.
The Alaska Supplement states that all curve signs "shall
be accompanied by an Advisory Speed Plate . . . when the safe speed
on the curve is 8 or more m.p.h. below the posted speed limit,
utilizing the Safe Speed on Curves Procedures described in the
supplement." [Fn. 15] The MUTCD defines "shall" as a mandatory
condition. [Fn. 16] In the instant case, the safe speed around the
curve was 50 m.p.h., only 5 m.p.h. below the posted speed.
Therefore, the condition requiring an advisory plate specified in
the supplement -- a safe speed of 8 or more m.p.h. below the posted
speed -- is not met here. Since the provision sets out in certain
terms when an advisory speed plate is necessary, DOT argues that it
has no duty to place a speed advisory plate at a curve where the
difference between the safe speed and posted speed is less than 8
m.p.h.
Because Walden's own expert concurs with DOT's expert
regarding the safe speed of the curve, there is no dispute that the
safe speed is 50 m.p.h. At this speed, there is no legal
requirement that DOT place a curve warning sign and a speed
advisory plate at the subject curve.
Because Walden cannot demonstrate that DOT had a duty to
place any signs at the Mile 54 curve, she has failed to establish
a necessary element of her prima facie negligence case. Absent any
showing that DOT had a duty to post a curve warning sign and speed
advisory plate at the Mile 54 curve, partial summary judgment was
properly entered against Walden.
B. The Superior Court Did Not Abuse Its Discretion by
Excluding Evidence of Prior Accidents That May Have Demonstrated
That DOT Had Notice of a Dangerous Condition at the Subject Curve.
Walden argues that the trial court erred in granting
DOT's motion in limine to preclude evidence of prior accidents at
the Mile 54 curve. Because the trial court's ruling on the motion
was proper and there is no evidence in the record that suggests the
trial court abused its discretion, we affirm the trial court's
exclusion of evidence of prior accidents.
The trial court initially ruled that Walden was precluded
from introducing evidence of prior accidents unless she could
demonstrate that the accidents were substantially similar to Mel's
accident. The trial court stated that the relevant factors for
determining substantial similarity were whether the accident
occurred in the same location and under "substantially similar
conditions." The trial court's ruling on the motion in limine
comports with the law. We have held that evidence of prior or
subsequent accidents is admissible in personal injury actions to
demonstrate that a defective or dangerous condition existed, so
long as the incident took place under substantially similar
circumstances. [Fn. 17]
Walden sought to present evidence of nine accidents that
had occurred at the curve. The trial court found that two of the
nine occurred under "substantially similar" circumstances -- at
night and in icy, snowy conditions; the court excluded evidence of
the other seven accidents as irrelevant. Nothing in the record
suggests that the trial court's decision to admit evidence of two
and exclude evidence of the other seven accidents was an abuse of
discretion.
Walden's own expert Edward Stevens, who reviewed the
police reports for all nine accidents, testified that he believed
only three to be substantially similar. The trial court admitted
evidence of two of these accidents. Walden did not provide this
court with sufficient evidence to evaluate her claim regarding the
third.
It is well-settled that it is an appellant's
responsibility to present this court with a record sufficient to
allow meaningful review of his or her claims. [Fn. 18] In the
instant case, the only information regarding these prior accidents
in the record is a table of accidents at the curve created by
Walden's expert Edward Stevens and Stevens's testimony regarding
the table. While the sheet does provide some important information
about the accidents, such as the time they occurred and the general
road conditions (dry or ice/snow), it leaves out many vital
variables (such as speed, alcohol use, traveling direction of the
vehicle, and weather conditions), that can make accidents that look
substantially similar on paper very different in reality. Stevens
compiled the table after reviewing the accident reports for each
accident occurring at the curve. Without the actual accident
report of the third, disputed accident, or more detailed
information before us, we are not left with a "definite and firm
conviction . . . that the trial court erred in its ruling" based
upon the information before it. [Fn. 19] Therefore, we hold that
the trial court did not abuse its discretion in excluding evidence
of the third accident.
C. Walden Failed to Preserve for Appeal Her Objection to the
Superior Court's Exclusion of the DOT Design Study Report.
Walden contends on appeal that the superior court erred
in excluding a DOT Design Study Report (DSR) that contained vital
information essential to her case. We hold that Walden failed to
preserve this issue.
While Walden did oppose the state's motion in limine to
exclude the DSR, she did not object to the exclusion of the report
at trial. A review of Walden's statements at trial even indicate
that she did the opposite: She agreed with the trial court's DSR
ruling and explicitly stated that it was correct. During the
trial, Walden's counsel admitted several times in open court that
he did not dispute the trial court's ruling on the DSR. After
moving for a mistrial because DOT expert Greg Frazier had testified
that he had used data gathered during a 1991 survey of the curve in
his analysis, Walden's counsel restated the language of the statute
that formed the basis for the exclusion of the DSR and said that
"we have never taken exception, in fact, I have candidly agreed
with the court the case law here is legion that the Design Study
Report cannot be used in a courtroom." Later that day, Walden's
counsel reiterated his earlier position: "[i]f the court goes back
and looks at [our] pleadings on the issue, we never responded by
saying 'no judge, you can't keep out the design study report' -- in
fact we agreed." Moments later, Walden's counsel explicitly stated
"it's not going to be an issue on appeal that the court improperly
excluded the design study report." [Fn. 20]
It is well-settled that a party must object to evidence
at the time it is offered in order to preserve the issue on appeal.
[Fn. 21] Similarly, we have held that a party's failure to make an
offer of proof on a particular piece of evidence also acts as a
waiver to any claim of error. [Fn. 22]
In the instant case, Walden did not object to the DSR at
trial. She also failed to make any offers of proof regarding the
DSR. Rather, she expressed her agreement with the court's ruling,
accepted it as correct, and explicitly stated that the DSR ruling
would not be an issue on appeal.
In effect, Walden's statements expressly conceding that
the trial court's ruling was correct, coupled with her failure to
object to the DSR ruling and her failure to make an offer of proof
on the DSR at trial, constitute a representation that she no longer
considered the DSR ruling at issue. Because Walden's affirmative
representations to the court effectively waived her objection to
the trial court's exclusion of the DSR, she has waived the issue
and cannot now challenge the ruling on appeal.
Even if Walden had not waived this issue, we would affirm
nonetheless because the superior court did not err in excluding the
DSR. The superior court excluded the DSR on the basis of 23
U.S.C.A. sec. 409, which explicitly states that reports made for
the
purpose of planning safety enhancements for or developing "any
highway safety construction improvement project" which may be
implemented using federal highway funds cannot be subject to
discovery or admitted in any state or federal action for damages
arising from an accident occurring at a locale mentioned in the
report. [Fn. 23] Walden conceded that the DSR is the type of
report covered by the statute, but challenged the superior court's
decision to exclude it on grounds that the state had waived the
protection of the statute by providing it to her during discovery.
The state did provide the report in discovery, but Walden's
argument nonetheless fails because, at most, by that action DOT
waived only the protection of the statute with respect to
discovery, not to its admission in court. The statute provides
that materials like the DSR "shall not be subject to discovery or
admitted into evidence in a Federal or State court proceeding."
[Fn. 24] DOT timely objected to use of the report at trial. The
trial court ruled on the DSR at the same time it ruled on all of
the other items contained in both parties' motions in limine.
Because DOT timely objected to use of the DSR at trial, it is clear
that DOT did not waive the protection of the federal statute with
respect to admissibility of the DSR at trial. Accordingly, the
superior court did not abuse its discretion in excluding this
report on federal law grounds.
D. The Trial Court Did Not Err in Refusing to Take Steps to
Mitigate the Alleged Harm to Walden's Case Caused by the Exclusion
of the DSR.
Walden further argues that the trial court should have
taken steps to mitigate the damage to her case resulting from its
last-minute exclusion of the DSR. She contends that the trial
court erred in refusing to reopen discovery during trial, limit the
state's expert testimony, and give jury instructions stating that
DOT had notice of problems with the curve prior to Mel's accident.
We note at the outset that Walden has provided no
authority for the proposition that a trial court is under an
obligation to "mitigate" the effects of its non-erroneous ruling.
Turning to Walden's specific complaints, we conclude that each
lacks merit for the following additional reasons.
At the time Walden asked the court to reopen discovery,
extensive discovery had already taken place during a period of over
one year. Because the parties had ample opportunity to engage in
discovery prior to trial, the superior court did not abuse its
discretion in refusing to reopen discovery during the trial. [Fn.
25]
As to the claim that the court should have limited the
state's expert testimony, the trial court did not abuse its
discretion in declining to do so. Indeed, it arguably would have
been an abuse of discretion for the trial court to strike the
state's experts to "mitigate" the effect of its proper ruling that
federal law precluded the use of the DSR. The state was fully
entitled to present expert opinion as to the circumstances of the
accident.
Finally, we find no error with regard to the court's
refusal to instruct the jury that DOT had notice of problems with
the curve before the accident. First, with limited exceptions not
applicable here, instructions concern "matters of law . . .
necessary for [the jury's] information in giving [its] verdict,"
[Fn. 26] not factual matters. Second, if Walden wished to
establish as fact that DOT had notice of problems with the curve,
it was incumbent upon her to adduce admissible evidence to support
that proposition. That the superior court properly excluded
evidence in the DSR report did not create any responsibility for
the court to "mitigate" the effect of this action by instructing
the jury on a matter of contested fact. Accordingly, we find no
error here.
E. The Superior Court Did Not Abuse Its Discretion in
Admitting the Testimony of DOT's Expert Myers.
Walden argues that the superior court abused its
discretion in admitting evidence of skid testing conducted by DOT
accident reconstruction expert John Myers because his tests took
place under conditions different from those at the time of the
Walden accident. Walden further argues that the court abused its
discretion by admitting Myers's testimony about Mel Walden's
driving speed at the time of the accident. We disagree.
1. The superior court did not err in admitting Myers's
tests.
Walden claims that Myers's skid-testing results should
have been excluded because he conducted them on packed snow rather
than on an icy surface.
While we have stated that "[e]xperimental evidence is
admissible only if the conditions of the experiment were
substantially similar to the conditions at the time of the event in
issue," [Fn. 27] we have also recognized that similarity of
conditions is not required in the case of "experiments designed to
show the general traits and capacities of materials involved in the
controversy." [Fn. 28] As noted in McCormick on Evidence,
"experiments showing general properties of materials are admitted
without confining the experiments to the conditions surrounding the
litigated situation." [Fn. 29]
The general properties of Willow sand are a major issue
in the instant case. Because a purpose of Myers's experiment was
to demonstrate the "traits and capacities" of Willow sand --
namely, the effect of Willow sand on the coefficient of friction of
the road -- the test conditions need not be identical to the
conditions of Mel's accident.
At the same time, Myers's test was carefully conducted,
and it tended to show how Willow sand affected the coefficient of
friction of the road. Accordingly, the test was relevant to a
contested issue in the case. Myers took great pains to ensure that
the test was as accurate and informative as possible. He chose an
asphalt road (the same material as the Parks Highway) for the skid
testing. Because he wanted to assess the effect of Willow sand on
the braking capacity of a Hyundai operated in slippery conditions
(as were the conditions at the time of the accident), he chose an
asphalt road that was covered with snow, which he had bladed to
smooth by the highway department. [Fn. 30] He used a Hyundai Excel
of the same model year as the one Mel was driving, weighted the
test vehicle in the same manner as Mel's car, outfitted the test
vehicle with tires similar to Mel's, and conducted the test at
speeds of 45-50 m.p.h. (Mel's claimed speed). He first conducted
locked wheel braking tests on the smooth, packed snow surface
without any sand. Myers then employed the same operator who
applied the sand to the Parks Highway on the day of the accident to
spread the sand on the slippery test road. In all of these
aspects, the test appeared to sufficiently replicate the road
conditions at the time of the accident in order to determine
whether application of Willow sand would have had any effect on the
braking capabilities of Mel's car. The trial court did not abuse
its discretion in admitting the results of Myers's experiment.
2. The superior court did not err in admitting Myers's
testimony regarding Mel Walden's driving speed.
Walden also objects to the trial court's refusal to
strike Myers's testimony that Mel Walden could have been going as
fast as 63 m.p.h. as he entered the curve. Walden argues that
Myers, by his own admission, had not previously expressed the
opinion that Mel could have been traveling over 60 m.p.h.
The trial court's denial of the motion to strike does not
amount to an abuse of discretion. At trial, Myers testified that
he believed that Mel did not slow down as he entered the curve, and
if Mel did, that Mel's entry speed was higher than the 45-50 m.p.h.
to which Mel admits. Myers further stated that for Mel to have
lost control in the manner that he did, he may have been going
about 63 m.p.h. as he entered the curve and then slowed down to 50.
Myers did agree with Mel's testimony that Mel's speed was between
45-50 m.p.h. after his first loss of control.
Myers's testimony during direct examination suggested two
possibilities: (1) that if Mel's 45-50 m.p.h. estimate of his curve
entry speed was accurate, he was in fact accelerating through the
curve rather than letting up on the gas pedal; or (2) that Mel was
driving close to 63 m.p.h. when he entered the curve. Myers's
testimony is consistent with DOT's expert witness disclosure of
Myers's testimony, which stated that Myers would testify that Mel
did not reduce his speed as he entered the curve and that he would
state that he believed Mel was at fault for the accident. While it
is true that the disclosure did not specifically state that Myers
would testify to Mel's speed, Walden was aware of Myers's
conclusion that Mel was at fault.
In any event, Myers's trial testimony was not
inconsistent with his deposition testimony or his earlier report
and DOT's expert disclosures. In addition, regardless of whether
Myers had not stated previously that he would testify that Mel was
going faster than 50 m.p.h., Myers's trial testimony was not
"particularly prejudicial" as Connie Walden claims. Walden could
have used the deposition testimony or the earlier report to impeach
Myers if she thought that he was significantly contradicting
himself. Furthermore, Walden was able to rebut Myers's testimony
by offering eyewitness testimony from both Mel and Clay Walden that
Mel had been driving somewhere between 45 and 50 m.p.h. Walden
also cannot demonstrate that Myers's testimony regarding speed
suddenly prejudiced her because her own expert, Dr. John Bollard,
implied that Mel was partially at fault because he was driving too
fast.
Because Myers's testimony did not significantly stray
from the statements he made in his report and in his deposition,
the trial court did not abuse its discretion by refusing to strike
Myers's statement regarding Mel Walden's alleged curve entry speed.
F. The Superior Court Did Not Abuse Its Discretion in
Admitting Evidence of Clay Walden's Psychological Condition.
Connie Walden contends that the trial court erred by
denying her motion for a protective order under Alaska Evidence
Rule 403 that would have barred DOT from presenting evidence of
witness Clay Walden's mental disorders. [Fn. 31]
Evidence of a witness's psychiatric condition is
admissible if the witness "suffered from some mental aberration
rendering his observation and memory . . . unreliable." [Fn. 32]
Here, the evidence regarding the effect that mental disorders (such
as those Clay suffered) have on perception and memory could support
the conclusion that Clay's capacity for accurate perception and
recollection could have been impaired and that such evidence was
admissible.
But even if the trial court abused its discretion in
admitting this evidence, any error was harmless. In his
deposition, portions of which were presented during DOT's case,
Clay effectively stated that the accident was Mel's fault. Because
Clay's testimony contradicts the main premise of Connie's case, any
loss of Clay's credibility in the jury's eyes would tend to help
rather than harm Connie. In addition, Connie claims that Clay's
testimony was important because it supported Mel's testimony that
he was driving 45-50 m.p.h. when he first lost control of the car.
However, it is highly unlikely that the weight given to this
statement by the jury would have made a difference in the outcome
of the case in light of the comprehensive and credible testimony
provided by Mel and both parties' experts as to how they believed
the accident happened.
G. The Superior Court Did Not Abuse Its Discretion in
Excluding DOT's Interrogatory Answer Regarding Tests Conducted by
Its Counsel.
Walden argues that the trial court erred by excluding
DOT's interrogatory answer concerning results of an informal Willow
sand traction test personally conducted by a DOT attorney on the
grounds that this information was protected by the work product
privilege. Walden maintains that the information at issue is not
covered by the privilege.
The trial court's determination that the test results
were covered by the work-product privilege is correct. The
attorney work-product privilege is designed to protect the mental
impressions, conclusions, and opinions of an attorney in the
preparation of materials for use in litigation. [Fn. 33] The
United States Supreme Court has stated that "the work product
doctrine shelters the mental processes of the attorney, providing
a privileged area within which he can analyze and prepare his
client's case." [Fn. 34] We have set three requirements for an
item to be covered by the work product privilege: (1) the item must
be "a document or other tangible thing"; (2) the item must be
"prepared in anticipation of litigation"; and (3) the item must be
prepared by or for the party's attorney or representative. [Fn. 35]
The test results provided by DOT in response to the interrogatory
meet all of these criteria: the test results were tangible data,
the tests were performed for the sole purpose of assisting DOT in
the litigation of Walden's claim, and the tests were personally
conducted by a DOT attorney.
While it is true that the work-product privilege can be
waived, [Fn. 36] DOT did not waive its privilege here. In general,
a privilege is waived if the holder of the privilege
"intentional[ly] relinquish[es] or abandon[s] . . . a known right
or privilege." [Fn. 37] In this case, DOT did not relinquish or
abandon its privilege because it did not voluntarily provide the
test results. It asserted the privilege during discovery and when
the motion to compel was heard, and only produced the test results
when compelled to do so by the trial court. [Fn. 38]
Since the test results are protected by the work-product
privilege and DOT did not waive the privilege, the trial court did
not abuse its discretion by ruling that the test results were
inadmissible.
V. CONCLUSION
Because the superior court did not abuse its discretion
in making the disputed evidentiary rulings and because the superior
court properly granted DOT's motion for partial summary judgment on
Walden's curve warning sign negligence claim, we AFFIRM the
superior court in all respects.
FOOTNOTES
Footnote 1:
Because we are affirming the superior court's decision, we
need not reach the issues raised in DOT's cross-appeal. DOT
brought its cross-appeal in the event of a remand.
Footnote 2:
The jury's special verdict stated that Shawn was entitled to
a damage award of $6.1 million and Connie was entitled to an award
of $2 million.
Footnote 3:
See Great Am. Ins. Co. v. Bar Club, Inc., 921 P.2d 626, 627
(Alaska 1996).
Footnote 4:
State, Dep't of Transp. & Pub. Facilities v. Sanders, 944 P.2d
453, 456 (Alaska 1997).
Footnote 5:
Sever v. Alaska Pulp Corp., 931 P.2d 354, 361 n.11 (Alaska
1996).
Footnote 6:
See Yang v. Yoo, 812 P.2d 210, 217 (Alaska 1991).
Footnote 7:
See Bliss v. Bobich, 971 P.2d 141, 144 n.3 (Alaska 1998).
Footnote 8:
See Mount Juneau Enters., Inc. v. City & Borough of Juneau,
923 P.2d 768, 773 (Alaska 1996) (reviewing decision to continue
discovery under Civil Rule 56(f) for an abuse of discretion).
Footnote 9:
In her initial complaint, Walden alleged that DOT had a duty
to post a curve warning sign and advisory speed plate prior to the
section of the roadway where Mel's accident occurred.
Footnote 10:
See Alvey v. Pioneer Oilfield Servs., Inc., 648 P.2d 599, 600
(Alaska 1982) (citing Larman v. Kodiak Elec. Ass'n, 514 P.2d 1275,
1279 (Alaska 1973)).
Footnote 11:
Alaska Statute 19.10.040 provides:
[DOT] shall classify, designate, and mark
highways under its jurisdiction and shall provide a uniform system
of marking and posting these highways. The system of marking and
posting must correlate with and, as far as possible, conform to the
recommendations of the Manual on Traffic Control Devices as adopted
by the American Association of State Highway Officials.
The "uniform system of marking and posting" required by
this statute is delineated in the Alaska Traffic Manual. At the
time of Mel's accident, this manual consisted of the 1988 edition
of the federal Manual on Uniform Traffic Control Devices (MUTCD)
and the December 1991 Alaska supplement to the MUTCD.
Footnote 12:
American Association of State Highway Officials, Manual on
Uniform Traffic Control Devices sec. 2C-5 (1988) (emphasis added).
Footnote 13:
See Alaska Department of Transportation, Alaska Supplement to
Manual on Uniform Traffic Control Devices sec. 2C-4 to 2C-8
(December
1991).
Footnote 14:
Manual on Uniform Traffic Control Devices sec. 1A-5.
Footnote 15:
Alaska Supplement sec. 2C-4 to 2C-8 (emphasis added).
Footnote 16:
Manual on Uniform Traffic Control Devices at sec. 1A-5.
Footnote 17:
See Johnson v. State, 636 P.2d 47, 57 (Alaska 1981).
Footnote 18:
See Adrian v. Adrian, 838 P.2d 808, 811 n.5 (Alaska 1992).
Footnote 19:
Bliss v. Bobich, 971 P.2d 141, 144 n.3 (Alaska 1998) (citation
and quotation marks omitted).
Footnote 20:
Although Walden argues that the statements at issue were made
in the limited context of a motion for mistrial, the broad scope of
these statements, which effectively state that she had not objected
to the trial court's ruling even at the pleadings stage, indicate
that the statements referred to her view of the ruling with respect
to the trial as a whole.
Footnote 21:
See Murat v. F/V Shelikof Strait, 793 P.2d 69, 75 (Alaska
1990).
Footnote 22:
See Alaska R. Evid. 103(a)(2) (requiring an offer of proof to
preserve objection when evidence is excluded from trial); Adamson
v. University of Alaska, 819 P.2d 886, 889-90 (Alaska 1991).
Footnote 23:
23 U.S.C.A. sec. 409 (West 2000) provides:
Notwithstanding any other provision
of law, reports, surveys, schedules, lists, or data complied or
collected for the purpose of identifying[,] evaluating or planning
the safety enhancement of potential accident sites, hazardous
roadway conditions, or railway-highway crossings, pursuant to
sections 130, 144, and 152 of this title or for the purpose of
developing any highway safety construction improvement project
which may be implemented utilizing Federal-aid highway funds shall
not be subject to discovery or admitted into evidence in a Federal
or State court proceeding or considered for other purposes in any
action for damages arising from any occurrence at a location
mentioned or addressed in such reports, surveys, schedules, lists,
or data.
Footnote 24:
Id. (emphasis added).
Footnote 25:
We do not suggest that the superior court lacked the equitable
authority to provide relief for any perceived disadvantage to
Walden in learning shortly before trial that evidence she planned
to rely on was inadmissible as a result of federal law. The court
had such authority. See Hecht Co. v. Bowles, 32 U.S. 321, 329-30
(1944) (holding trial courts have equitable authority to "mould
each decree to the necessities of the particular case" and to allow
for "nice adjustment and reconciliation between the public interest
and private needs"). But the court was not required to take any
particular action in this case.
Footnote 26:
Alaska R. Civ. P. 51(b).
Footnote 27:
Beck v. State, Dep't of Transp. & Pub. Facilities, 837 P.2d
105, 113 (Alaska 1992).
Footnote 28:
Patricia R. v. Sullivan, 631 P.2d 91, 101 (Alaska 1981). In
Patricia R., we affirmed the exclusion of a test designed to show
how a child could have been burned by an allegedly defective heater
because the test purported to be a reenactment of the accident and
significant dissimilarities existed between the test and real
conditions. See id. However, we deemed admissible evidence of the
characteristics of the heater gathered from the same test, such as
how high the surface temperature of the heater could get. See id.
Therefore, despite the dissimilarities between the test and actual
conditions, we ruled that the characteristic evidence could be
admitted as being probative of the properties of the heater. Seeid.
Footnote 29:
1 John W. Strong et al., McCormick on Evidence sec. 202 at 724
(5th ed. 1999).
Footnote 30:
Myers explained that he "purposely used a surface . . . which
could be prepared and safely used and which could illustrate the
effect of sand on an icy surface."
Footnote 31:
Clay has been diagnosed as suffering from bipolar disorder,
for which he takes the medication lithium. On the day of the
accident, Mel and Shawn had picked him up from the Alaska
Psychiatric Institute, where he had been receiving treatment for
two to three weeks, including medication to control his symptoms.
Footnote 32:
Bakken v. State, 489 P.2d 120, 124 (Alaska 1971).
Footnote 33:
See McKibben v. Mohawk Oil Co., Ltd., 667 P.2d 1223, 1231
(Alaska 1983).
Footnote 34:
United States v. Nobles, 422 U.S. 225, 238 (1975).
Footnote 35:
Langdon v. Champion, 752 P.2d 999, 1005 (Alaska 1988).
Footnote 36:
See Lowery v. State, 762 P.2d 457, 460 (Alaska App. 1988).
Footnote 37:
Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
Footnote 38:
When Walden initially submitted the interrogatory in question,
DOT refused to answer, "assert[ing] work product privilege over all
aspects of this event." Walden then filed a motion to compel a
response, which the trial court granted. In an effort to comply
with the court's order, DOT provided Walden with a supplemental
answer providing some details of this test. Prior to trial, Walden
filed a motion for ruling on admissibility of the interrogatory at
trial. The trial court ruled that the interrogatory was
inadmissible because it was work product prepared by DOT's
attorneys. The trial court also ruled that Walden did not
demonstrate the level of prejudice necessary to compel admission of
the test results as Walden herself had retained experts who had
conducted similar tests on their own.
