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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pagenkopf v. Chatham Electric, Inc. (08/24/2007) sp-6151
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| RONALD J. PAGENKOPF, | ) |
| ) Supreme Court No. S- 11580 | |
| Appellant/Cross-Appellee, | ) Superior Court No. 1JU-02-242 CI |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| CHATHAM ELECTRIC, INC., | ) |
| HUGH DILBECK, individually and | ) No. 6151 - August 24, 2007 |
| d/b/a BEAR BODY WORKS, | ) |
| ) | |
| Appellees/Cross-Appellants. | ) |
| ) | |
| HUGH DILBECK, individually and | ) |
| d/b/a BEAR BODY WORKS, | ) Supreme Court No. S- 11729 |
| ) Superior Court No. 1JU-02-242 CI | |
| Cross-Appellant/Cross-Appellee, | ) |
| ) | |
| v. | ) |
| ) | |
| RONALD PAGENKOPF and | ) |
| CHATHAM ELECTRIC, INC., | ) |
| ) | |
| Cross-Appellees/Cross-Appellants. | ) |
| ) | |
| CHATHAM ELECTRIC, INC. | ) |
| ) Supreme Court No. S- 11739 | |
| Cross-Appellant/Cross-Appellee, | ) Superior Court No. 1JU-02-242 CI |
| ) | |
| v. | ) |
| ) | |
| RONALD J. PAGENKOPF, | ) |
| ) | |
| Cross-Appellee/Cross-Appellant. | ) |
| ) | |
| Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Larry R. Weeks, Judge. | |
Appearances: Gregory
W. Lessmeier and Michael L. Lessmeier,
Lessmeier & Winters, Juneau, for
Appellant/Cross-Appellee/Cross-Appellant
Pagenkopf. R. N. Sutliff, Anchorage, for
Appellee/Cross-Appellant/Cross-Appellee
Dilbeck. Anthony M. Sholty, Faulkner
Banfield, P.C., Juneau, for Appellee/Cross-
Appellant/Cross-Appellee Chatham Electric,
Inc.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, and Fabe, Justices. [Carpeneti,
Justice, not participating.]
BRYNER, Chief Justice.
I. INTRODUCTION
Nick Goddard, an employee of Chatham Electric, Inc.,
opened an overhead garage door while on a job at Hugh Dilbecks
auto body shop in Juneau. The opening door knocked Ronald
Pagenkopf off a ladder, severely injuring him. Pagenkopf sued
Goddard and Chatham Electric (collectively Chatham). Chatham
filed a third-party complaint against Dilbeck. After Pagenkopf
rejected a pretrial offer of judgment from Chatham, a jury
awarded Pagenkopf damages against Chatham and Dilbeck. The total
award exceeded Chathams pretrial offer, but Chathams share of the
damages fell well below the offer. The superior court awarded
attorneys fees to Chatham under Alaska Civil Rule 68 because
Pagenkopf won less from Chatham at trial than he would have
received under Chathams pretrial offer. All parties appeal.
Pagenkopf asserts that Chathams offer of judgment was too
uncertain to support an award under Rule 68; he also contests the
starting date for prejudgment interest to be paid by Dilbeck. We
hold that the pretrial offer created apportionment difficulties
that made it an invalid Rule 68 offer and that Dilbeck should be
required to pay prejudgment interest from the date he first knew
that a claim against him was likely to be filed. Chatham
challenges the accuracy of several monetary adjustments
incorporated in the final judgment. We find these points moot
and decline to decide them because our disposition of other
points will require a new judgment to be entered on remand.
Dilbeck contends that a jury instruction improperly required the
jury to apply negligence per se to decide if he was at fault. We
conclude that the challenged instruction did not apply negligence
per se or otherwise prejudice Dilbeck.
II. FACTS AND PROCEEDINGS
On February 24, 2001, Nick Goddard, an employee of
Chatham Electric, Inc., was working at the request of Hugh
Dilbeck on a control panel for a paint booth at the Bear Body
Shop, an auto repair shop owned and operated by Dilbeck in
Juneau. That same day Ronald Pagenkopf, a friend of Dilbeck, was
helping Dilbeck install overhead fluorescent lights in the work
area of the shop.
While Pagenkopf was standing on a ladder working on the
lights, Goddard opened the overhead door to enter the garage.
The garage door knocked Pagenkopf off his ladder, causing severe
injuries. Pagenkopf filed suit against Chatham and Goddard
(collectively Chatham). Chatham then filed a third-party suit
against Dilbeck for equitable apportionment under Alaska Civil
Rule 14(c) and AS 09.17.080.
In March 2003 Chatham offered judgment to Pagenkopf in
the total amount of $525,000 in complete satisfaction of
plaintiffs claims against [Chatham] in this matter.1 Although
Chathams offer did not mention Chathams third-party complaint
against Dilbeck, Dilbecks insurance carrier had evidently agreed
to contribute $150,000 toward the amount Chatham offered. After
contacting Dilbeck and learning of his undisclosed participation
in Chathams offer, Pagenkopf passed up the offer and the case
proceeded to trial.
The jury found that Pagenkopfs damages totaled $698,800
and that Pagenkopf, Chatham, and Dilbeck all shared in the
fault; the verdict allocated twenty-two percent of the fault to
Pagenkopf, twenty-eight percent to Chatham, and fifty percent to
Dilbeck. Chatham and Dilbecks combined seventy-eight percent
share of the damages gave Pagenkopf a net verdict for damages
totaling $545,064 $195,664 representing Chathams twenty-eight
percent proportionate share of the fault and $349,400
representing Dilbecks fifty-percent share.
Based on this verdict, Chatham and Pagenkopf filed
several prejudgment motions. Chatham moved for partial attorneys
fees and costs under Civil Rule 68, arguing that it was the
prevailing party under Rule 68 because its pretrial offer
substantially exceeded the amount of the judgment Pagenkopf
recovered against Chatham at trial. After denying Pagenkopfs
request to compare the pretrial offer to the entire amount the
jury awarded against Chatham and Dilbeck not just Chathams
proportionate share of the award the court declared Chatham to
be the prevailing party and directed Pagenkopf to pay Chathams
post-offer costs and attorneys fees, an amount totaling more than
$50,000.2
Chatham also moved under AS 09.17.070 to reduce
Pagenkopfs judgment by amounts that Pagenkopf had received from
his health insurance policy. The superior court denied this
motion, ruling that applying AS 09.17.070 would not actually
reduce Pagenkopfs judgment because his attorneys fees and
payments for the insurance exceeded the amount of the insurance
benefits he received.
Pagenkopf separately moved for an award of prejudgment
interest against Dilbeck, contending that the interest should be
calculated from the date Dilbeck and his insurer first received
notice of a potential claim several days after the February 24,
2001 accident. The trial court granted Pagenkopfs motion for
pretrial interest but ordered the interest to run from the date
Dilbeck received service of Chathams third-party complaint April
2, 2002.
Pagenkopf, Dilbeck, and Chatham now appeal, challenging
various aspects of the final judgment.
III. DISCUSSION
A. Rule 68 Claims
Pagenkopf challenges the superior courts order awarding
attorneys fees to Chatham under Civil Rule 68. Rule 68 allows a
party to make an offer of judgment [a]t any time more than 10
days before the trial begins.3 If the judgment finally rendered
is at least five percent less favorable to the offeree than the
offer, the rule provides that the offeree shall pay all costs as
allowed under the Civil Rules and shall pay [a percentage of the]
reasonable actual attorney fees incurred by the offeror from the
date the offer was made.4
Here, Chatham unsuccessfully offered Pagenkopf $525,000
before trial in complete satisfaction of his claims against
Chatham:
Pursuant to Alaska Civil Rule 68 and AS
09.30.065, defendants Chatham Electric, Inc.
and Nick Goddard offer to allow judgment in
favor of the plaintiff in the total amount of
$525,000 in complete satisfaction of
plaintiffs claims against Chatham Electric
and Nick Goddard in this matter. This amount
offered includes all prejudgment interest,
attorneys fees and costs incurred to the date
of this offer to which the plaintiff may be
entitled under Alaska law. Nothing in this
offer should be deemed an admission.
The jury found Chatham and Dilbeck liable for damages totaling
$545,064, allocating $195,664 of that amount to Chatham and
$349,400 to Dilbeck. The superior court compared Chathams
$195,664 share of the total award to its pretrial offer and
determined that the jurys award was more than five percent less
favorable to Pagenkopf than Chathams offer. Accordingly, the
court found Chatham to be the prevailing party under Rule 68 and
ordered Pagenkopf to pay Chathams post-offer costs and fees.
Pagenkopf argues that the superior court mistakenly
compared Chathams pretrial offer to its share of the jurys total
award to Pagenkopf. He maintains that the proposed settlement
with Chatham would have eliminated Chathams third-party claim
against Dilbeck; because he had claimed all of his damages in his
complaint against Chatham and had never directly sued Dilbeck,
Pagenkopf further maintains that dismissal of the third-party
complaint would have left him with no claim against Dilbeck.
Since the deadline for amending his pleadings had passed by the
time Chatham offered to settle, Pagenkopf points out, he had no
further right to file a direct claim against Dilbeck. In
Pagenkopfs view, then, Chathams pretrial offer of judgment
effectively asked him to resolve his entire claim, not just
Chathams share of the liability. He argues that, under these
circumstances, the superior court should have compared the
pretrial offer to his total award from the jury an amount that
exceeded the pretrial offer and thus failed to justify an award
of fees under Rule 68.
Alternatively, Pagenkopf insists that Chathams offer of
judgment was too ambiguous to support an award under Rule 68.
Given Chathams silence concerning the effect its offer might have
had on the third-party claim against Dilbeck, Pagenkopf contends
that the offer generated too much uncertainty to support Chathams
motion for Rule 68 fees.
In response, Chatham defends the superior courts Rule
68 award. It insists that its pretrial offer did not preclude
Pagenkopf from pursuing a direct claim against Dilbeck, that it
met all the requirements of Rule 68, and that it unambiguously
sought to resolve only Pagenkopfs liability claims against
Chatham.
We have previously observed that [a]n offer of
judgment and acceptance thereof is a contract. 5 We have also
adopted the view that [t]he interpretation of a contract is a
question of law to which we apply our independent judgment.6 The
interpretation of Rule 68 also presents questions of law that we
subject to independent review.7 In determining whether a
particular offer complies with Rule 68, we must view the offers
terms as a reasonable offeree would have understood them at the
time the offer was made.8
Here, Pagenkopf claims that Chathams offer suffered
from impermissible ambiguity; he also asserts that the proposed
settlement raised apportionment problems by affecting Chathams
third-party claim against Dilbeck. In applying Rule 68, we have
consistently emphasized that an enforceable offer must be
unambiguous:
One of the protections afforded by the Civil
Rule 68 procedure is that the offer of
judgment must be definite. This protection
is designed to avoid post-trial litigation
concerning the meaning of the offer. In
keeping with this purpose, we have recognized
that, to comply with Rule 68, an offer of
judgment must specify a definite sum and must
be unconditional. Because this requirement
basically concerns the specificity of the
offer rather than its communication of a
monetary amount, however, we have recognized
that nonmonetary provisions in an offer of
judgment can also be valid, so long as they
are unambiguous and unconditional.[9]
In Johns Heating Service v. Lamb we described a
specific, two-factor approach for determining whether pretrial
offers are enforceable under Rule 68 in cases involving offers to
or from multiple parties.10 The first factor requires the offer
to be unambiguous in the sense that it includes all the
relationships among the parties and their conflicting claims. 11
In other words, the offer must indicate that all claims between
the parties would be resolved if the offer were accepted. 12 The
second factor requires the court to consider whether the offer
presents any apportionment difficulties.13
With this framework in mind, we consider whether the
offer disputed here could support an award under Rule 68.
1. Ambiguity
In asserting that Chathams offer of judgment was
ambiguous, Pagenkopf contends that Chatham failed to clarify the
consequences of accepting its offer. Pagenkopf focuses his theory
of ambiguity on the circumstances surrounding Chathams offer
rather than on the offer itself. Because Dilbeck evidently
agreed to contribute $150,000 to Chathams settlement payment,
Pagenkopf claims, the offer of judgment, although nominally
extended only by Chatham, seems to have been a joint offer by
Dilbeck and Chatham.
According to Pagenkopf, this ambiguity created a
dilemma: because his complaint asserted a claim only against
Chatham and, in turn, Dilbecks liability turned entirely on
Chathams third-party complaint for equitable apportionment,
Pagenkopf had no way of ascertaining what effect Chathams offer
might have on Dilbecks potential liability. Pagenkopf points out
that after Chatham extended its offer, Dilbeck acknowledged his
agreement to contribute to the proposed settlement payment; and
Chatham did not deny the agreement. Pagenkopf insists that,
given the offers silence on this point, the uncertainty
surrounding Chathams unexplained arrangement with Dilbeck made
its offer ambiguous, precluding the court from using the offer as
a basis for Rule 68 fees. If he had accepted Chathams offer,
Pagenkopf reasons, Dilbeck would surely have argued that the
settlement with Chatham resolved its equitable apportionment
claim as well, even though the offer made no mention of the third-
party claim.
We disagree with Pagenkopfs theory of ambiguity. The
theory is flawed because it relies on uncertain circumstances
external to the offer that concern the offers collateral effects
rather than the meaning of its terms. As we explain further
below, the uncertainty surrounding Dilbecks apparent side-
agreement with Chatham creates apportionment problems that
implicate the second part of the Johns Heating test; but this
uncertainty does not make the offer itself ambiguous.
The terms of Chathams offer are definite and
unequivocal. By offer[ing] to allow judgment in favor of the
plaintiff in the total amount of $525,000 in complete
satisfaction of plaintiffs claims against Chatham Electric and
Nick Goddard in this matter, Chathams offer unequivocally
proposed to resolve only the portion of damages that Pagenkopf
was entitled to recover from Chatham. Under Alaska law,
Pagenkopf could recover damages from Chatham only to the extent
of Chathams proportionate share of the fault.14 Chathams proposal
thus met the threshold criteria for an unambiguous offer: [T]o
comply with Rule 68, an offer of judgment must specify a definite
sum and must be unconditional. 15 Moreover, because the offer
incorporated no nonmonetary conditions, it left no room for
ambiguity as to nonmonetary terms. The offer also met the first
part of the Johns Heating test governing multiple-litigant cases,
since it identified the parties included in the proposed
agreement and clearly indicated all claims between the parties
would be resolved if the offer were accepted. 16 In short, we
conclude that Chathams offer met all relevant criteria for an
unambiguous offer.
2. Apportionment issues
Although Chathams offer was unambiguous, it
nevertheless confronted Pagenkopf with apportionment problems
that placed the implications of accepting the offer in
considerable doubt. As already mentioned, in Johns Heating we
adopted the position that an unapportioned pretrial offer of
judgment involving multiple parties will not trigger Rule 68 if
the offer creates apportionment difficulties.17 We must initially
consider whether the Johns Heating test applies here.
The procedural setting in Johns Heating differed from
the situation at issue in this case. In Johns Heating, a married
couple, the Lambs, sued Johns Heating Service for personal
injuries caused by negligent services performed by Johns Heating.18
Before trial, the Lambs sent Johns Heating an unapportioned joint
offer of judgment for $750,000; after Johns Heating failed to
accept the offer, the jury awarded damages to the Lambs exceeding
the pretrial offer, and the trial court applied Rule 68.19 On
appeal, Johns Heating challenged this ruling, citing Brinkerhoff
v. Swearingen Aviation Corp.20 for the proposition that joint
offers of judgment present apportionment issues that make them
inappropriate for the penalty provision of Civil Rule 68.21 We
distinguished the Lambs situation, which involved an offer made
by joint offerors to a single offeree, from the one addressed in
Brinkerhoff, which involved an unapportioned offer made by a
single offeror to joint offerees.22 We emphasized that the
Brinkerhoff situation invariably creates problems: Apportionment
difficulties are intrinsic to cases involving unapportioned joint
offers because the offerees must agree as to how proceeds are to
be divided (or how the responsibility for payment should be
divided when the offerees are defendants).23 By contrast, because
we found no comparable intrinsic danger in the Lambs joint offer
of judgment to a single offeree, we adopted a more flexible
approach that called for an individualized assessment to
determine if apportionment difficulties actually existed.24
We drew this approach from Chief Justice Rabinowitzs
dispositional but non-precedential opinion in Taylor Construction
Services, Inc. v. URS Co.25 Our opinion in Johns Heating
described the approach as follows:
Chief Justice Rabinowitz, writing for an
equally divided court, identified two factors
that should be analyzed in deciding whether a
joint offer should trigger Rule 68 penalties
in the context of an offer made by joint
offerors to a single offeree. First, if the
offer was inclusive of all the relationships
among the parties and their conflicting
claims, and second, if no apportionment
difficulty existed, the unaccepted offer
could trigger Rule 68 penalties. We adopt
the Taylor dispositional opinions approach
today.[26]
Applying this approach to the facts in Johns Heating,
we concluded that the Lambs pretrial offer was a valid Rule 68
offer: First, there is no question that the unapportioned offer
was inclusive of all relationships among the parties and their
conflicting claims. That is, had the offer been accepted, all
claims between the parties would have been resolved. Second, no
apportionment difficulties existed since the offeree, Johns
Heating, was a single entity.27
The procedural situation in Pagenkopfs case differs
markedly from the situation at issue in Johns Heating. In Johns
Heating we applied Taylors two-factor approach to assess the
validity of an unapportioned joint offer made by two plaintiffs,
a married couple, to one defendant. By contrast, the offer here
came from an individual defendant, Chatham,28 and was extended to
an individual plaintiff, Pagenkopf. Nominally, then, it was not
a joint offer purporting to resolve the rights of multiple
parties; yet functionally, the offer created apportionment
difficulties involving another party, Dilbeck. The offer
neglected to address Chathams pending third-party equitable
apportionment claim against Dilbeck; at the same time, Chatham
had apparently failed to disclose a side-agreement calling for
Dilbeck to contribute to Chathams proposed settlement payment.
Although this procedural setting can be distinguished
from the one in Johns Heating, the offer of judgment here
nonetheless raises serious concerns grounded in potential
difficulties arising from the offers effect on other parties
whose share of the damages remained unapportioned. We see no
reason why the approach articulated in Taylor and adopted in
Johns Heating should not apply in determining whether Chathams
pretrial settlement offer was a valid Rule 68 offer of judgment
in this context. Given Alaskas system of comparative
fault, Chathams offer raised unique apportionment difficulties.
In cases involving the fault of more than one person, unless
otherwise agreed by all parties, AS 09.17.080 requires the court
to instruct the jury to allocate a percentage of the total fault
to each claimant, defendant, third-party defendant, person who
has been released from liability, or other person responsible for
the damages.29 We have interpreted this provision to require that
third parties must be joined for purposes of allocating fault and
liability, or not at all.30 But we have also recognized that AS
09.17.080 itself establishes no . . . procedure to allow named
defendants to allocate fault to potentially responsible parties
that the plaintiff ha[s] not sued.31 We discussed this omission
in Benner v. Wichman and concluded that, absent any explicit
statutory procedure, defendants must be allowed to file third-
party claims for equitable apportionment against other
potentially responsible parties.32
After Benner was decided, its holding was implemented
by a provision in Alaskas civil rules that established the
procedure that defendants could use for equitable apportionment
of damages to third parties who had no direct liability to the
defendant but were potentially responsible to the plaintiff.33
Civil Rule 14(c) now explicitly provides for equitable
apportionment through third-party claims. Under this provision, a
defendant may add as a third-party defendant any person whose
fault may have been a cause of the damages claimed by the
plaintiff; if the third-party claim succeeds, then the court may
enter judgment in favor of the plaintiff in accordance with the
third-party defendants respective percentage of fault, regardless
of whether the plaintiff has asserted a direct claim against the
third-party defendant.34
Since promulgating Rule 14(c), we have described its
equitable apportionment procedure as a cause of action that
stands apart from the plaintiffs claim against the defendant a
mechanism for spreading damages that bears a far closer
relationship to [a traditional contribution action] than to the
underlying tort action[].35 But in addition to recognizing that
equitable apportionment claims are distinct actions designed to
help defendants apportion liability and damages, we have also
emphasized that these claims provide a vital benefit to
plaintiffs by vindicating not just the right of defendants to
have damages apportioned in accordance with their fault, but the
commensurate duty of responsible third parties to pay plaintiffs.36
Thus, Rule 14(c)s provision directing that judgments on
defendants third-party claims are to be entered in favor of the
plaintiff rather than in favor of the named defendant plays a
vital role in harmonizing the defendants benefit of spreading
damages according to fault with the plaintiffs right to recover
full proportionate payment from all responsible parties. By
taking advantage of Rule 14(c)s equitable remedy allowing damages
to be apportioned fairly among third parties, the defendant in
effect consents to let the apportioned damages inure directly to
the plaintiffs benefit. In other words, the defendant undertakes
the burden of proving the third-party claim; but the undertaking
results in a twofold benefit: it provides a benefit to the
defendant in the form of reduced damages reflecting the
defendants proportionate fault and to the plaintiff in the form
of a third-party judgment ensuring full payment.
Chathams offer in this case fundamentally distorted
Rule 14(c)s carefully drawn balance of benefits and burden; if
accepted, the offer promised to leave Pagenkopf with a
substantial apportionment burden not contemplated by the rule.
As already pointed out, Chathams nominal offer to
settle only its proportionate share of Pagenkopfs claims
evidently masked an undisclosed arrangement calling for Dilbeck
or Dilbecks insurer to contribute to Chathams settlement payment.
This arrangement threatened to undercut Pagenkopfs right to a
Rule 14(c) judgment for whatever amount Chatham might be able to
recover against Dilbeck by pursuing the third-party complaint.
As noted above, Rule 14(c)s procedure for equitable apportionment
was not designed as a mechanism to allow a named defendant like
Chatham to reduce its own fair share of the damages by claiming
and keeping contributions from a responsible third-party
defendant like Dilbeck.
At the time of its offer, Chatham had evidently agreed
upon a separate arrangement with Dilbeck or Dilbecks insurer that
might have blocked or diminished Pagenkopfs right, under Chathams
third-party claim, to recover a direct judgment against Dilbeck
for his proportionate share of the fault. Because of this
unrevealed side-agreement, Chathams offer created apportionment
problems that made it fundamentally unfair to draw a comparison
between the lump sum Chatham offered before trial to the amount
the jury ultimately awarded against Chatham alone. This
unfairness flows from two sources: the lump sum offered by
Chatham before trial carried an unknowable cost by jeopardizing
Pagenkopfs procedural right to recover apportioned damages from
Dilbeck under Chathams third-party claim; and the damages awarded
by the jury against Chatham for its share of the fault excluded
the apportioned damages Pagenkopf gained by holding Chatham to
its original decision to pursue a third-party claim.
A similar apportionment difficulty would have existed
even without any side-agreement for contributions from Dilbeck or
Dilbecks insurer. As we have seen, by enabling Chatham to file
an equitable apportionment claim against Dilbeck, Rule 14(c) gave
Chatham the significant advantage of reducing its potential
damages by apportioning fault and damages to Dilbeck; in return
for this benefit, Chatham assumed the burden of proving its third-
party claim against Dilbeck a quid pro quo designed to benefit
Pagenkopf as well as Chatham.
Without Chathams third-party claim, Pagenkopfs decision
not to sue Dilbeck would have left the parties in agreement to
exclude Dilbeck from the lawsuit. Alaska Statute 09.17.080(a)
allows potentially responsible parties to be excluded from the
jurys apportionment of fault and damages when agreed by all
parties participating in the action. So if Chatham had elected
at the outset not to proceed against Dilbeck, Pagenkopf could
have sought to recover all of his alleged damages directly from
Chatham, and Chatham would have been unable to allocate any
portion of the fault or damages to anyone other than Pagenkopf.37
In other words, Chatham was able to divide Pagenkopfs claim and
shift liability to Dilbeck only by undertaking the burden of
attempting to prove Dilbecks fault in its third-party complaint.
Yet by later proposing a settlement covering only its
limited portion of the freshly divided claim, Chatham created an
obvious problem from Pagenkopfs perspective: the proposed
settlement would have dismissed Chatham from the case completely,
thus leaving no basis for pursuit of the third-party claim
between Chatham and Dilbeck.38 This offer left Pagenkopf with a
lose-lose proposition. On the one hand, if he settled with
Chatham for part of his losses and then sought to pursue the
remainder from Dilbeck, Pagenkopf would have had to shoulder the
burden of proving Dilbecks fault the very burden that Chatham
had elected to assume in return for the opportunity of
apportioning part of the damages to Dilbeck; in addition, of
course, Pagenkopf would have had to assume the risk of being
blocked from pursuing a direct claim against Dilbeck because, by
the time Chatham made its offer, the deadline for amending the
pleadings had already passed. On the other hand, by declining to
settle so that he could preserve his right to benefit from
Chathams equitable apportionment claim against Dilbeck, Pagenkopf
exposed himself to the prospect of a Rule 68 claim demanding
payment of Chathams fees for performing the work of proving its
claim against Dilbeck again, the very burden that Chatham had
voluntarily undertaken as a necessary cost of apportioning part
of its damages to Dilbeck.
Chatham has offered no justification that would explain
why it should be allowed to use Rule 68 as a lever to push a
settlement that would have shifted to Pagenkopf Chathams freely
undertaken burden of proving Dilbecks fault, while offering
Pagenkopf nothing for his cost of assuming that burden. Like the
prospect of an undisclosed side-agreement calling for Dilbeck to
contribute to the settlement, this apportionment difficulty added
incalculable costs and risks to the lump-sum payment Chatham
offered for its limited share of Pagenkopfs damages. Thus, both
difficulties preclude a fair comparison between the amount of the
lump-sum offer and the amount Pagenkopf later recovered from
Chatham at trial. By passing up the offer, Pagenkopf undeniably
obtained more from Chatham than just the amount awarded against
Chatham at trial.
We therefore conclude that these apportionment
difficulties prevented Chathams offer from triggering an award of
fees and costs under Rule 68. In so ruling we do not suggest
that a voluntary settlement incorporating Chathams offer would
have been invalid or unenforceable; that issue is not before us
here, and we express no view on it. We hold only that for
purposes of Rule 68s fee-shifting provisions, Chathams offer did
not present a fair basis for comparing the offers monetary
provision to the amount Pagenkopf actually recovered against
Chatham in the judgment. Rule 68 is designed to encourage
reasonable settlements and avoid protracted litigation.39 These
aims can only be attained when the offer advanced is clear,
unambiguous, and does not saddle the offeree with unfathomable
complexities relating to apportionment. Because the offer in
this case created unfair apportionment difficulties, we must
vacate the superior courts order awarding Rule 68 costs and fees
to Chatham.
B. Judgment-Related Claims
Pagenkopf and Chatham both appeal certain issues
involving calculations of the final judgment. Pagenkopf argues
that he was entitled to prejudgment interest from Dilbeck from
the time Dilbeck and his insurance carrier had notice of a
potential claim, shortly after the accident. Chatham argues that
the trial court erred in denying its post-trial motion to reduce
the jury award under AS 09.17.070 by the amount of Pagenkopfs
nonsubrogated collateral benefits.
1. Pagenkopfs claim for prejudgment interest from
Dilbeck
Determining the starting date for prejudgment interest
presents a question of law that we resolve by applying our
independent judgment.40 We review interpretations of statutes de
novo, adopting the rule of law that is most persuasive in light
of precedent, reason, and policy.41
Pagenkopf argues that the superior court erred in
ruling that prejudgment interest should accrue from April 2,
2002, the date that the third-party complaint was served on
Dilbeck. Pagenkopf claims that the court should have ordered
prejudgment interest to begin much sooner within several days of
the accident, when Dilbeck and his insurer first became aware
that a claim was likely to be filed. Dilbeck responds that
Pagenkopf is not entitled to interest from the earlier date,
since he failed to give proper written notice of a claim against
Dilbeck as required by AS 09.30.070(b).
The relevant portion of AS 09.30.070(b) provides:
Except when the court finds that the parties
have agreed otherwise and except as provided
by AS 45.05.111(d), prejudgment interest
accrues from the day process is served on the
defendant or the day the defendant received
written notification that an injury has
occurred and that a claim may be brought
against the defendant for that injury,
whichever is earlier. The written
notification must be of a nature that would
lead a prudent person to believe that a claim
will be made against the person receiving the
notification, for personal injury, death, or
damage to property.
Under this provision, a potential defendant does not
need to receive notice of an actual claim, but rather only needs
to receive notice that a claim may be brought.42 In Lloyds v.
Fulton we stated that AS 09.30.070(b) establishes an objective
test providing that interest begins to accrue upon written notice
that would lead a prudent person to believe that a claim will be
made against the person receiving the notification. 43 Direct
notice from the potential claimant is not required.44
In McConkey v. Hart we further held that, despite AS
09.30.070(b)s express reference to written notice, the statutory
requirement of written notice may be satisfied by proof of actual
notice.45 While Dilbeck argues that there is no evidence that
Pagenkopf ever intended to make a direct claim against him,
AS 09.30.070(b) does not require the defendant to know the
claimants identity; it only requires knowledge that a claim may
be brought against the defendant for th[e] injury.
Dilbecks actions in the immediate aftermath of the
accident appear to show that he actually believed a claim might
be brought against him.46 He was present during the accident,
realized that Pagenkopf was injured, and promptly sent his
insurer a written Notice of Incident form describing the accident
in a manner that ascribed negligence to Chatham. Dilbecks
insurance agent notified the insurance carrier that there was no
claim as of yet and added that Dilbeck believes there may not be
one. At a minimum, Dilbecks optimistic belief reveals his actual
knowledge that a claim might be filed; and his hopeful subjective
view that there may not be one would hardly preclude a finding
that, objectively viewed, the information Dilbeck actually knew
would lead a prudent person to believe that a claim [would] be
made against him.47
The record thus contains reliable proof capable of
supporting a finding that Dilbeck had actual notice of the
potential claim soon after Pagenkopf was injured.48 Moreover
Dilbecks ensuing communications with Chathams insurance carrier
and his later participation in mediation with Chatham and
Pagenkopf would seem to establish the existence of actual notice
by the time the mediation occurred still well before he was
served with Chathams third-party complaint. Under these
circumstances we hold that AS 09.30.070(b)s written-notice
requirement does not control in this case and that prejudgment
interest began to accrue no later than the date of the mediation.
Because an even earlier starting point is arguable, the exact
date must be determined in the first instance by the superior
court on remand.
2. Chathams claim that the court erred in addressing
Pagenkopfs nonsubrogated collateral benefits
Chatham contends that the trial court should have
reduced the jury award under AS 09.17.070 by the amount of
Pagenkopfs nonsubrogated collateral benefits. Chatham attributes
the trial courts refusal to allow a reduction to three separate
errors, complaining that the court miscalculated the proper
amount of the offset by (1) using Pagenkopfs actual attorneys
fees instead of the fees he would have paid if he had accepted
Chathams pretrial offer; (2) failing to reduce the amount of
Pagenkopfs out-of-pocket medical expenses by his percentage of
fault; and (3) including certain impermissible health club
expenses in its calculation of Pagenkopfs costs. Chatham
separately faults the trial court for failing to award to Chatham
costs it incurred from the start of the lawsuit rather than from
the date of its pretrial offer of judgment.
Because our decision vacating Chathams Rule 68 award
will require the superior court to redetermine all issues of fees
and costs between Chatham and Pagenkopf and to enter a modified
judgment reflecting its rulings on remand, we conclude that the
various calculational errors asserted by Chatham are moot and
need not be decided.
C. Jury Instruction Claim
Dilbeck argues that the jury used an incorrect standard
of negligence in finding that he acted negligently and was partly
liable for Pagenkopfs injuries. Specifically, Dilbeck points to
Jury Instruction 22, which referred to an Occupational Safety and
Health Administration (OSHA) regulation directing that [l]adders
shall not be placed in front of doors opening toward the ladder
unless the door is blocked upon, locked or guarded.49 Dilbeck
asserts that the language of Instruction 22 referring to this
directive erroneously suggested that if Dilbeck failed to comply
with the OSHA regulation, his noncompliance would amount to
negligence per se.50
Jury Instruction 22 stated:
There is a workplace safety law of the
State of Alaska which provides that:
Ladders shall not be placed in front of
doors opening toward the ladder unless the
door is blocked upon, locked or guarded.
Chatham Electric, Inc. claims that the
owner, Hugh Dilbeck, violated this law. If
you decide that it is more likely true than
not true that Hugh Dilbeck violated any part
of this law and that the violation was a
legal cause of the accident, then you may
find Hugh Dilbeck negligent.
If you decide it is more likely true
than not true that Hugh Dilbeck obeyed this
law, you may still find Hugh Dilbeck
negligent if you decide that a reasonable
person under circumstances similar to those
shown by the evidence would have taken
precautions in addition to those required by
the statute.
Instructions on the verdict form will
tell you what to do if you decide that Hugh
Dilbeck was negligent.
Dilbeck acknowledges that he did not comply with the
OSHA regulation. But he claims that because Pagenkopf was a
volunteer and not a shop employee when the accident occurred, the
regulation did not apply to Dilbecks conduct. He argues that by
referring to the regulation and suggesting that it applied to
him, Instruction 22 unfairly condemned him to being found
negligent per se for violating an OSHA requirement that he had no
legal duty to obey.
Dilbeck also faults the instruction for including
language telling the jury how to proceed if it found that Dilbeck
had complied with the OSHA requirement. According to Dilbeck,
the court mistakenly drew this language from a pattern-jury
instruction dealing with the defense of compliance. Dilbeck
insists that this instruction is meant to be given only in
negligence per se cases where the defense of compliance is
actually raised. Dilbeck emphasizes that he never asserted a
defense based on compliance he simply took the position that the
OSHA regulation did not apply. Given these circumstances,
Dilbeck reasons that the instruction virtually directed a verdict
against him by suggesting that he had claimed compliance and was
required to prove his defense. In Dilbecks view, the instruction
held him to an impossibly high standard that would have allowed
the jury to absolve him of negligence only if it found
[c]ompliance with the statute and more.
In our view, Dilbeck misreads Instruction 22. To
explain this conclusion, we begin with a brief review of our case
law on negligence per se. We have recognized that the violation
of a regulation or statute amounts to negligence as a matter of
law that is, negligence per se when the statute or regulation
at issue defines a standard of conduct that a reasonable person
is expected to follow under the circumstances presented.51 For
purposes of determining whether a particular law sets a standard
that justifies applying negligence per se, we have adopted the
four criteria set out in section 286 of the Restatement (Second)
of Torts.52 When these criteria are met, the court instructs the
jury on negligence per se, informing jurors that if they find a
violation, they must find the defendant negligent.53
But we have also recognized that trial courts have
discretion to treat the requirements of a law as relevant
evidence of negligence even if the law fails to meet the
Restatements criteria for applying negligence per se.54 In such
cases, we have held, if the trial court deems a provision of law
relevant to the standard-of-care inquiry, the court is authorized
to permit the introduction of testimony showing violation as
evidence of negligence and to instruct the jury that it may
consider a violation of the law to be evidence of negligence.55
The Alaska Civil Pattern Jury Instructions reflect this
distinction between a regulations use to establish negligence per
se and its use as mere evidence to help the jury decide how to
assess the conduct at issue under the general standard of
reasonable care. Pattern Instruction 03.04A addresses the
stringent requirement of negligence per se;56 Pattern Instruction
03.04B deals with the more lenient evidence-of-negligence
concept;57 and Pattern Instruction 03.04C informs the jury how to
proceed if it finds that the defendant has complied with a law
that applies to the case.58
As can be seen, Instruction 22, the instruction
disputed here, does not use the language of Pattern Instruction
03.04A, Alaskas pattern instruction on negligence per se.
Instead, by stating that if the jury found that Dilbeck had
violated the OSHA regulation, then you may find Hugh Dilbeck
negligent, Instruction 22 mirrored the language of Pattern
Instruction 03.04B the instruction dealing with use of a law as
evidence of negligence. As the superior court aptly noted in
response to Dilbecks objection to the instruction at trial, I did
not say that you shall find Hugh Dilbeck negligent, but that you
may. I think that gives you the opportunity to argue.
Dilbeck does correctly observe that Instruction 22 also
incorporates language from Pattern Jury Instruction 03.04C, which
tells the jury how to proceed when a defendant claims to have
complied with a law that applies to the case. Yet Dilbeck
mistakenly suggests that Pattern Instruction 03.04C is limited to
cases involving negligence per se. By its express terms, Pattern
Instruction 03.04C covers all situations in which [t]here is a
law . . . that applies to this case and an issue of compliance
might be raised.59 Nothing in the instructions title or wording
confines its use to cases involving compliance with a law that
applies under the doctrine of negligence per se; and nothing in
the instruction implies that it may not also be used in cases
involving laws that apply under the more flexible evidence-of-
negligence theory.
Nor do we read either Pattern Instruction 03.04C or
Instruction 22 as given here to imply that a defense of
compliance has actually been raised. Similarly, we do not read
these instructions as suggesting that the defendant must bear the
burden of proving compliance and must rule out other grounds for
finding negligence as well. In our view, a reasonable juror
reading Instruction 22 in a commonsense manner would understand
it to say only that if the defendant claims compliance with an
applicable law and the evidence establishes that claim, the jury
is not precluded from finding negligence on other grounds when
the evidence supports such a finding. While this aspect of
Instruction 22 may have been superfluous and arguably should
have been omitted because Dilbeck did not actually claim
compliance, we fail to see any reasonable likelihood that its
unnecessary inclusion resulted in the risk of substantial
prejudice to Dilbeck.60 Accordingly, we find no reversible error
in Instruction 22.61
IV. CONCLUSION
For the foregoing reasons we REVERSE the award of Rule
68 attorneys fees to Chatham and also REVERSE the order
establishing that prejudgment interest on Dilbecks claim begins
to run on the date Dilbeck received service of Chathams third-
party complaint. We REMAND for entry of a modified judgment
conforming to our ruling on these points. We AFFIRM the superior
courts judgment in all other respects.
_______________________________
1 Chatham actually made two identical offers of judgment
in March 2003 one on March 11 and the other on March 28.
Because the second offer simply renewed the first, we refer to
them as a single offer.
2 The trial court also denied Pagenkopfs request to
allocate part of Chathams costs to Dilbeck for purposes of
applying Rule 68. This ruling did not affect the courts
prevailing-party determination.
3 Alaska R. Civ. P. 68(a).
4 Alaska R. Civ. P. 68(b).
5 Jaso v. McCarthy, 923 P.2d 795, 801 (Alaska 1996)
(quoting Davis v. Chism, 513 P.2d 475, 481 (Alaska 1973)).
6 Id. (citing Alaska Energy Auth. v. Fairmont Ins. Co.,
845 P.2d 420, 421 (Alaska 1993)).
7 Id. (citing Toney v. Fairbanks N. Star Borough Sch.
Dist. Bd. of Educ., 881 P.2d 1112, 1114 (Alaska 1994)).
8 Thomann v. Fouse, 93 P.3d 1048, 1050 (Alaska 2004)
(citing Bayly, Martin & Fay, Inc. of Alaska v. Arctic Auto
Rental, Inc., 517 P.2d 1406, 1407 (Alaska 1974)).
9 Id. (internal quotations omitted).
10 Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1042 (Alaska
2002).
11 Id. (quoting Taylor Constr. Servs., Inc. v. URS Co.,
758 P.2d 99, 102 (Alaska 1998)).
12 Id. at 1042 n.85 (quoting Taylor Constr. Servs., Inc.,
758 P.2d at 102).
13 Id. at 1042.
14 See AS 09.17.080(a).
15 Thomann, 93 P.3d at 1050 (quoting Davis v. Chism, 513
P.2d 475, 481 (Alaska 1973)).
16 Johns Heating Serv., 46 P.3d at 1042 n.85 (quoting
Taylor Constr. Servs., Inc., 758 P.2d at 102).
17 Id. at 1042.
18 Id. at 1028-29.
19 Id. at 1029-30.
20 Brinkerhoff v. Swearingen Aviation Corp., 663 P.2d 937,
943 (Alaska 1983).
21 Johns Heating Serv., 46 P.3d at 1041-42.
22 Id. at 1042.
23 Id. at 1042.
24 Id.
25 Taylor Constr. Servs., Inc. v. URS Co., 758 P.2d 99,
102 (Alaska 1988).
26 Johns Heating Serv., 46 P.3d at 1042 (citing Taylor
Constr. Servs., Inc., 758 P.2d at 102).
27 Id.
28 Although the offer in his case literally sought to
settle Pagenkopfs claims against both Chatham Electric and its
employee, Goddard, we assume for purposes of this analysis that
Chatham and Goddard can be treated as an individual offeror
because Chatham is vicariously liable on the basis of respondeat
superior for Goddards fault, so that Chathams and Goddards share
of the damages would have been coextensive. We note that
Pagenkopf has not asserted the existence of any apportionment
difficulties arising from this aspect of the offer.
29 AS 09.17.080(a)(2). AS 09.17.080 provides in relevant
part:
(a) In all actions involving fault of more
than one person, including third-party
defendants and persons who have settled or
otherwise been released, the court, unless
otherwise agreed by all parties, shall
instruct the jury to answer special
interrogatories or, if there is no jury,
shall make findings, indicating
(1) the amount of damages each claimant
would be entitled to recover if contributory
fault is disregarded; and
(2) the percentage of the total fault that
is allocated to each claimant, defendant,
third-party defendant, person who has been
released from liability, or other person
responsible for the damages unless the person
was identified as a potentially responsible
person, the person is not a person protected
from a civil action under AS 09.10.055, and
the parties had a sufficient opportunity to
join that person in the action but chose not
to; in this paragraph, sufficient opportunity
to join means the person is
(A) within the jurisdiction of the court;
(B) not precluded from being joined by law
or court rule; and
(C) reasonably locatable.
30 Alaska Gen. Alarm, Inc., v. Grinnell, 1 P.3d 98, 104
(Alaska 2000).
31 Id. at 101.
32 See Benner v. Wichman, 874 P.2d 949, 956-57 (Alaska
1994); see also Alaska Gen. Alarm, Inc., 1 P.3d at 101.
33 Alaska Gen. Alarm, Inc., 1 P.3d at 101.
34 Alaska R. Civ. P. 14(c) provides :
Equitable Apportionment. For purposes
of apportioning damages under AS 09.17.080,
a defendant, as a third-party plaintiff, may
follow the procedure of paragraph (a) to add
as a third-party defendant any person whose
fault may have been a cause of the damages
claimed by the plaintiff. Judgment may be
entered against a third-party defendant in
favor of the plaintiff in accordance with the
third-party defendants respective percentage
of fault, regardless of whether the plaintiff
has asserted a direct claim against the
third-party defendant.
35 Alaska Gen. Alarm, Inc., 1 P.3d at 105.
36 Id. at 102 (citing Benner, 874 P.2d at 956 & n.17).
37 See Alaska Gen. Alarm, Inc., 1 P.3d at 102-04
(recognizing that Civil Rule 14(c)s purpose of limiting fault
allocation to joined parties more specifically, to parties
potentially liable to the plaintiff, rather than empty chair
defendants was to ensure that fault was accurately litigated,
and holding that this purpose does not conflict with the
requirements or intent of AS 09.17.080).
38 See Restatement (Third) of Torts: Apportionment of
Liability 24 cmt. e (2000) (When a settlement is reached between
the plaintiff and a potentially liable tortfeasor that releases
only the settling tortfeasor, the settling tortfeasor ordinarily
should be dismissed from the lawsuit or, if no suit has been
initiated, not joined in any action that is subsequently brought.
Dismissal occurs even if contribution claims have been made
against or by the settling tortfeasor.).
39 Cook Schuhmann & Groseclose, Inc. v. Brown & Root,
Inc., 116 P.3d 592, 598 (Alaska 2005) (citing Fernandes v.
Portwine, 56 P.3d 1, 8 (Alaska 2002)).
40 Beaux v. Jacob, 30 P.3d 90, 100 (Alaska 2001)
(citations omitted).
41 Id. (citing Sosa v. State, 4 P.3d 951, 953 (Alaska
2000)).
42 AS 09.30.070(b).
43 Lloyds & Inst. of London Underwriting Cos. v. Fulton, 2
P.3d 1199, 1210 (Alaska 2000) (quoting Himschoot v. Shanley, 908
P.2d 1035, 1042-43 (Alaska 1996)).
44 Id.
45 McConkey v. Hart, 930 P.2d 402, 404 (Alaska 1996)
(citations omitted).
46 Cf. Lloyds & Inst. of London Underwriting Cos., 2 P.3d
at 1210-11 ([T]he only relevant question is whether a reasonable
person in Lloydss position would believe, upon receiving Walter
Clarks September 22 letter and Property Marines accompanying
memo, that the Clarks would claim policy coverage for Fultons
injuries. Our review of the letter and the cover memo leads us
to answer this question in the affirmative.) (footnote omitted).
47 AS 09.30.070(b).
48 Cf. McConkey, 930 P.2d at 404-05 (determining that
written note in doctors file provides reliable proof of notice of
[potential malpractice claim] and when it was given).
49 8 Alaska Administrative Code (AAC) 61.1010(b), adopting
29 C.F.R. 1910.25(d)(2)(iv).
50 Assessing the validity of jury instructions presents a
question of law that we review de novo. Reich v. Cominco Alaska,
Inc., 56 P.3d 18, 25 (Alaska 2002) (We review de novo jury
instructions to which timely objection was made.) (citation
omitted). An error in jury instructions will be grounds for
reversal only if it caused prejudice. State, Dept of Corr. v.
Johnson, 2 P.3d 56, 59 (Alaska 2000).
51 See, e.g., Bachner v. Rich, 554 P.2d 441-42 (Alaska
1976).
52 Bachner, 554 P.2d at 443 (quoting Restatement (Second)
of Torts 286 (1965)). Under the Restatements standard, in order
to serve as the standard of care, the purpose of the relevant
statute must be:
(a) to protect a class of persons which
includes the one whose interest is invaded,
and
(b) to protect the particular interest which
is invaded, and
(c) to protect that interest against the
kind of harm which has resulted, and
(d) to protect that interest against the
particular hazard from which the harm
results.
Id.
53 See Alaska Civil Pattern Jury Instruction 03.04A (Apr.
2006).
54 Bachner, 554 P.2d at 442.
55 Id.; Alaska Civil Pattern Jury Instruction 03.04B (Apr.
2006).
56 Pattern Instruction 03.04A provides:
VIOLATION OF STATUTE - NEGLIGENCE PER SE
There is a law of the (State of Alaska)
(City of ________) which provides: (Insert
applicable statute, regulation, or
ordinance.)
If you decide that it is more likely
true than not true that the (plaintiff)
(defendant) violated any part of this law and
that the violation was a legal cause of the
accident, then you are required to find the
(plaintiff) (defendant) negligent [unless you
also find the violation was excused].
57 Pattern Instruction 03.04B provides:
VIOLATION OF STATUTE - EVIDENCE OF NEGLIGENCE
There is a law of the (State of Alaska)
(City of _______) which provides: (Insert
applicable statute, regulation, or
ordinance.)
If you decide it is more likely true
than not true that the defendant violated any
part of this law, you may consider that fact
along with all the other evidence [including
any evidence tending to show why the law was
violated] in deciding whether under the
circumstances of this case the defendant used
reasonable care.
58 Pattern Instruction 03.04C provides:
COMPLIANCE WITH STATUTE
There is a law of the (State of Alaska)
(City of _______) that applies to this case.
It provides: (Insert applicable statute,
regulation, or ordinance.)
If you decide it is more likely true
than not true that the (plaintiff)
(defendant) obeyed this law, you may still
decide (he) (she) is negligent if you decide
that a reasonably careful person under
circumstances similar to those shown by the
evidence would have taken precautions in
addition to those required by the (statute)
(ordinance).
A use note appended to Pattern Instruction 03.04C explains
its purpose: This instruction may be used in appropriate cases
where it is claimed that a party was not negligent because the
party complied with a statute. Alaska Civil Pattern Jury
Instructions With Use Notes and Comments 03.04C (Apr. 2006).
59 Alaska Civil Pattern Jury Instruction 03.04C (Apr.
2006).
60 We note that the only mention of the instruction to the
jury during the parties final arguments was made by Chathams
attorney, who argued that Dilbecks failure to comply with the
regulation supported a finding of negligence and refrained from
suggesting that the violation established the existence of
negligence as a matter of law:
The other instruction concerning Mr. Dilbeck
is instruction number 22 and that says, There
is a workplace safety law of the State of
Alaska which provides that, and I quote,
Ladders shall not be placed in front of doors
opening toward the ladder unless the door is
blocked upon, locked or guarded. Chatham
Electric, Inc. claims the owner, Hugh
Dilbeck, violated this law. If you decide
that it is more likely true than not true
that Hugh Dilbeck violated any part of this
law and that the violation was a legal cause
of the accident, then you may find Hugh
Dilbeck negligent. Well, there is no
question, no question whatsoever that Mr.
Dilbeck didnt lock the door. And there can
be no question that the law which says
ladders shall not be placed in front of doors
opening toward the ladder unless the door is
locked, there is no question that he violated
that law. And there can be no question,
also, that this accident wouldnt have
happened had he obeyed that law. If Hugh
Dilbeck had done that, had he obeyed that
law, none of us would be here today. So
again, under instruction number 22, I suggest
to you, that Mr. Dilbeck is negligent.
61 Dilbeck has consistently argued that the OSHA
regulations did not apply to him in the circumstances surrounding
Pagenkopfs accident. Our disposition makes it unnecessary to
address the issue; we have assumed that the contention is correct
without attempting to resolve the point. We also note that
Dilbecks argument challenging Instruction 22 is based on the
mistaken premise that it instructed the jury to apply negligence
per se. Dilbeck has not separately asserted that using the OSHA
regulation as permissive evidence of negligence independently
amounted to an abuse of discretion.
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