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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Martinez-Morales v. Martens (2/19/2016) sp-7083

Martinez-Morales v. Martens (2/19/2016) sp-7083

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                        

JUAN  MARTINEZ-MORALES,                                          )  

                                                                 )          Supreme  Court  No.  S-15805  

                                 Appellant,                      )  


                                                                 )          Superior Court No. 3AN-13-09825 CI  

           v.                                                    )  


                                                                 )          O P I N I O N  


RONDA MARTENS,                                                   )  


                                                                 )          No. 7083 - February 19, 2016  

                                 Appellee.                       )  




                      Appeal from the Superior Court of the State of Alaska, Third  


                      Judicial District, Anchorage, Patrick J. McKay, Judge.  


                      Appearances: Charles W. Coe, Law Office of Charles W.  


                      Coe, Anchorage, for Appellant.  Gregory R. Henrikson and  


                      Laura Eakes, Walker & Eakes, Anchorage, for Appellee.  


                      Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and  


                      Bolger, Justices.  


                      PER CURIAM.  



                      This appeal arises from an accident in a parking lot in which a vehicle  


driven by Ronda Martens struck pedestrian Juan Martinez-Morales as he crossed the lot.  


A  jury  found  that  Martens  was  not  negligent,  and  the  superior  court  entered  final  


judgment  in  her  favor,  awarding  her  costs  and  attorney's  fees.                                        Martinez-Morales  


appeals, arguing that the superior court erred by giving incorrect jury instructions on  


causation and damages, failing togiveamultiple-causejury instruction, declining to give  

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Martinez-Morales's proposed jury instructions on the standard of care, and improperly  


admitting testimony from Martens's accident reconstruction expert.  We conclude that  


Martinez-Morales's arguments relating to jury instructionsoncausationanddamages are  


moot and that the superior court did not err in its jury instructions on negligence or in its  


admission of expert testimony.  We therefore affirm the superior court in all respects.  




                    In June 2012 Juan Martinez-Morales was crossing a parking lot on foot  


after exiting a restaurant when he was struck by a car driven by Ronda Martens.  At trial  


the parties disputed the facts of the accident.  Martinez-Morales claimed he "walk[ed]  


normally" into the parking lot and past a truck, looked both ways before stepping into  


the "main path" of the parking lot, and was struck by the front of Martens's vehicle.  


Martens claimed that she turned into the parking lot, Martinez-Morales "ran right in  


front" of her, and she stopped immediately.  


                    Martinez-Morales sued Martens for negligence, alleging that Martens was  


driving too fast in what he considered the wrong lane of the parking lot, failed to warn  


Martinez-Morales before hitting him, and failed to yield the right of way to a pedestrian.  


He claimed that Martens's alleged negligence caused him to suffer bodily injury and  


damages in the formof medical expenses, physical and emotional pain and suffering, lost  


wages, and loss of the full use of his body and enjoyment of life.  


                    The case proceeded to trial before Superior Court Judge Patrick J. McKay  


in November 2014. The jury found that Martens was not negligent, and the court entered  


final judgment in her favor in December 2014, awarding her costs under Alaska Civil  


Rule 79 and attorney's fees under Alaska Civil Rule 82.  Martinez-Morales appeals and  


requests that we reverse and remand for a new trial.  

                                                               -2-                                                         7083

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III.	         STANDARDS OF REVIEW                       

                            "We apply our independent judgment in determining mootness because, as                                                                             


a matter of judicial policy, mootness is a question of law."                                                                                                                  

                                                                                                                              "The decision whether to  



include  a  particular  instruction  rests  with  the  discretion  of  the  trial  court." 


generally review a trial court's decision to admit expert testimony for abuse of discretion  


and will reverse 'only when left with the definite and firm conviction that the trial court  

erred in its decision.' "                     3  

IV.	          DISCUSSION  


              A.	           The Issues Of  Jury  Instructions  On Causation And Damages Are  




                           Most   of   Martinez-Morales's   appeal   comprises   objections   to   jury  



instructions given on causation and damages.                                                       Martinez-Morales argues that the jury  


instructions on causation were "not completely based on Alaska case law" and that they  


"put an enhanced burden of proof on plaintiffs" in civil personal injury cases.   He  


contends that the instructions misstated the law by providing an "incorrect definition of  

              1            Akpik v. State, Office of Mgmt. &Budget                                           , 115 P.3d 532, 534 (Alaska 2005)                         

(citing   Ulmer v. Alaska Rest. & Beverage Ass'n                                                  , 33 P.3d 773, 776 (Alaska 2001)).                       

              2             Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1150 n.21 (Alaska  


 1999) (quoting Shane v. Rhines, 672 P.2d 895, 901 (Alaska 1983)).  


              3	            Thompson v. Cooper, 290 P.3d 393, 398 (Alaska 2012) (quoting Jackson  


v. Am. Equity Ins. Co. , 90 P.3d 136, 145 (Alaska 2004)).  


              4             TheinstructionsMartinez-Morales challenges areall basedonAlaskaCivil  


Pattern Jury Instructions (Pattern Instructions):  03.01 (listing the elements required to  


recover under a theory of negligence), 03.07 (advising jurors how to determine whether  


negligence was a substantial factor in causing the harm), 20.06 (instructing jurors on  


damages for non-economic losses), and 20.18A (instructing jurors not to compensate for  


harm caused by a failure to mitigate),  


                                                                                      -3-	                                                                              7083

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substantial factor"                                                 that included the limitation that "negligence cannot be remote or                                                                                                                                                             

trivial." At trial Martinez-Morales requested that in place of the jury instruction defining                                                                                                                                                                                 

"substantial factor," the court give an alternate instruction, which had been used in the                                                                                                                                                                                                      

past   before   being   replaced   by   the   Civil   Pattern  Jury  Instructions   Committee.     The  

proposed languagewould                                                                  haveinstructed jurors that the test for causation is whether "the                                                                                                                                   

act or failure to act was so important in bringing about the harm that a reasonable person                                                                                                                                                                                         

would regard it as a cause and attach responsibility to it."                                                                                                                                                 The court declined to use                                                        

Martinez-Morales's proposed instruction.                                                                                                          

                                              Martinez-Morales also argues that the repetition of the "substantial factor"                                                                                                                                                        

requirement "multiple times" throughout the jury instructions and on the special verdict                                                                                                                                                                                          

form created a higher burden of proof for the plaintiff than is required in other civil                                                                                                                                                                                                   

cases.   Relatedly, he appears to challenge the foundational requirement that negligence                                                                                                                                                                            

must be a substantial factor in causing harm, but his brief to this court on that point is                                                                                                                                                                                                          

                                            6     Finally, Martinez-Morales argues that the superior court erred by failing  


to give a multiple-causation instruction as he requested.  


                                              Martinez-Morales also challenges the superior court's decision not to use  


his proposed damages instruction, which informed jurors about the award of damages  


for non-economic losses.   The proposed language would have instructed jurors:  "If  


                       5                      The court instructed that to find that a plaintiff may recover under a theory                                                                                                                                                      

of negligence, the jury must find that the defendant's negligence was a substantial factor                                                                                                                                                                                            

in causing the plaintiff's harm.                                                                            

                       6                      While Martinez-Morales clearly objects to the use of the "remote or trivial"  


language, his general position on the substantial factor test itself is inconsistent. At times  


it seems he is only challenging the inclusion of the "remote or trivial" language in the  


definition of substantial factor, but elsewhere he argues that "[f]orcing the jury to apply  


a 'substantial factor test' to determine harm should not be part of the burden of proof"  


in determining whether a plaintiff can recover under a theory of negligence.  


                                                                                                                                                -4-                                                                                                                                      7083

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 Mr. Martinez-Morales received medical care as a result of being struck on June 28, 2012,                                                                                                                                                              

 you must award a fair amount for the injuries which are a result of what occurred."                                                                                                                                                   

 Martinez-Morales also objects to the mitigation instruction that advised jurors not to                                                                                                                                                                          

 award damages for any losses that could have been avoided with reasonable efforts and                                                                                                                                                                       

 without undue risk.                           

                                         We do not need to decide whether the superior court correctly instructed                                                                                                                        

 the jury on causation or damages because these issues are moot.                                                                                                                                    An issue "is moot if it                                        

 is no longer a present, live controversy, and the party bringing the action would not be                                                                                                                                                                       

                                                                                                            7  In this case, the first question on the special verdict  

 entitled to relief, even if it prevails."                                                                                                                                                                                                         

 form asked the jury, "Was Mrs. Martens negligent?  Answer 'yes' or 'no.' "  The jury  

 answered, "No." The superior court then instructed jurors that if their answer to the first  


 question was "no," they were finished with their deliberations and were not to answer  


 any subsequent questions on the special verdict form.  The second question, which the  


jury never reached, asked the jury to determine whether "Mrs. Martens'[s] negligence  


 [was] a substantial factor in causing harm to Mr. Martinez-Morales."  


                                         The only instructions the jury needed to determine whether Martens was  


 negligent were the instruction defining negligence as "the failure to use reasonable care  


 to  prevent harm to oneself or  others," and the instructions setting the standard  for  


 reasonable care for pedestrians and drivers.  Because the jury determined that Martens  


 had not been negligent, it never reached any questions of causation or damages that  


 would have required them to apply the instructions that Martinez-Morales challenges.  


 Becausetheseissues aremoot, we affirmthe superior court'sinstructions and its decision  


 not to include Martinez-Morales's proposed language.  


                     7                   Alaska Fur Gallery v. First Nat'l Bank Alaska                                                                                            , 345 P.3d 76, 96-97 (Alaska                                  

 2015) (quoting                                Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks                                                                                                                                 , 48 P.3d     

  1165, 1167 (Alaska 2002)).                                                           

                                                                                                                                -5-                                                                                                                      7083

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                  B.	               The   Superior   Court   Did   Not   Err   By   Denying   Martinez-Morales's  

                                    Proposed Instructions On The Standard Of Care.                                                                                                 

                                    While Martinez-Morales's challenges to the jury instructions on causation                                                                                                 

and damages are moot, his objections to the instructions establishing required standards                                                                                                                      

of care for each party are properly before us.                                                                           The court instructed the jury that a driver                                                  

is negligent if he or she "does not use reasonable care:                                                                                              1) to keep a lookout for other                                     

travelers or obstacles within or approaching the vehicle's line of travel, and 2) to control                                                                                                                         

the speed and movement of the vehicle," and a pedestrian is negligent if "the pedestrian                                                                                                                    


does not exercise reasonable care."                                                                                                                                                                                         

                                                                                                      Martinez-Morales submitted two proposed jury  


instructions  that  he  argues  would  have  provided  "additional  clarification"  of  these  


                                    Both of Martinez-Morales's proposed instructions were based on Pattern  


Instruction 03.04B, which is given when the jury is to consider violation of a particular  


                                                                                                                                                                  The first instruction cited  

statute, regulation, or ordinance as evidence of negligence. 


 13 Alaska Administrative Code (AAC) 02.545(b), which provides that "[e]very driver  


of a vehicle shall exercise care to avoid colliding with a pedestrian, an animal or another  


vehicle." The second proposed instruction cited 13 AAC 02.050(a), which provides that  

                  8                 These   instructions   are   based   on   Pattern   Instructions   05.01   and   05.03,  

defining the general duties of care for drivers and pedestrians respectively.                                                                                         

                  9                 PatternInstruction03.04B,DirectionsforUse,  


/juryins.htm. Martinez-Morales argues that the superior court deniedhis "negligenceper  


se instruction," but our review of the record shows that he did not request a negligence  


per se instruction.  The instruction for negligence per se is Pattern Instruction 03.04A,  


not 03.04B, which may be used when the violation of a statute provides some evidence  


of negligence. Further, he claims that at trial "the court determined that these regulations  


do not constitute negligence per se, only evidence of negligence."  Rather, the superior  


court declined to give either proposed instruction because it found that the regulations  


did not apply in parking lots.  


                                                                                                                -6-	                                                                                                      7083

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"[u]pon a road way of sufficient width, a vehicle must be driven upon the right half of                                                                                          

the road              way."     The superior                              court  declined   to   include either                                            proposed   instruction  

because the court "simply [did not] think that the ordinances . . . apply to a parking lot                                                                                                             

situation" and therefore any purported violation of the regulation could not constitute                                                                                               

                                                         10    With regard to the first proposed instruction, the court also  

evidence of negligence.                                                                                                                                                                            

determined that concerns about drivers not watching for pedestrians were sufficiently  


"covered under what [the court] ha[d] already determined to be the motor vehicle duties"  


under the instruction establishing the standard of care for drivers.  


                                The  superior  court  did  not  abuse  its  discretion  by  failing  to  give  


Martinez-Morales's  proposed  evidence-of-negligence  instructions.                                                                                                       Regardless  of  


whether  13  AAC  02.545(b)  applies  to  parking  lots,  an  instruction  based  on  that  


regulation would have been redundant.  The instructions given already advised jurors  


that they should find negligence if they determined that Martens had failed to keep a  


lookout for people or obstacles or had not been in control of the speed or movement of  


her vehicle.  The proposed instruction based on 13 AAC 02.050(a) was also properly  


declined  because  such  traffic  regulations  seemingly  "apply  exclusively  to  the  .  .  .  


movement  or  operation  of  a  vehicle  .  .  .  upon  a  highway  or  a  state-operated  and  


maintained  ferry  facility  except  where  a  limited  application  or  a  different  place  is  


specifically referred to in a section."11                                                         Because no relevant exception exists in the  


                10              At   trial,   the   court   noted   that   while   it   would   not   give   the   requested  

instruction, it would "overrule any objection to [Martinez-Morales's] argument that                                                                                                                

 [Martens] should have been driving closer to the right-hand side." This assurance should                                                                                                     

have helped alleviate Martinez-Morales's concerns that the location of Martens's car                                                                                                                 

would not be considered by the jury.                                                     

                11              13 AAC 02.560 (emphasis added).  


                                                                                                   -7-                                                                                           7083

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regulation requiring drivers to drive on the right-hand side of the road, the regulation                                                                                                                                                                                                                           

does not apply in parking lots.                                                                                               

                                                      We    affirm    the    superior    court's    decision    not   to    include    either    of  

Martinez-Morales's proposed jury instructions on the standard of care.                                                                                                                                                                                                                            

                           C.	                        The Superior Court Did Not Err By Admitting Testimony Of The                                                                                                                                                                                                                          

                                                      Accident Reconstruction Expert.                                                                                                                 

                                                      Finally, Martinez-Morales challenges the superior court's admission of                                                                                                                                                                                                                        

testimony from one of Martens's witnesses, Bob Butcher, an accident reconstruction                                                                                                                                                                                                                 

expert.   Martinez-Morales argues that Butcher was unqualified to testify as an expert                                                                                                                                                                                                                                              

because he had not taken classes in accident reconstruction in the past 15 years, had not                                                                                                                                                                                                                                                        

researched or published anything in the field, and was not certified by the relevant                                                                                                                                                                                                                                       

national certification group. Martens counters that Butcher had extensive experience in                                                                                                                                                                                                                                                               

law enforcement and accident reconstruction. The superior court found that Butcher was                                                                                                                                                                                                                                                         

qualified because "[t]here's no requirement under the rule that [Butcher] actually be                                                                                                                                                                                                                                                              

certified" and he only "has [to have] more knowledge than the jury, and [be able to]                                                                                                                                                                                                                                                             

assist the jury."                      

                                                      "Alaska recognizes two general categories of expert testimony:                                                                                                                                                                                                (1) expert   

opinion based on technical or scientific research and testing; and (2) expert opinion                                                                                                                                                                                                                                        

                                                                                                                                                                                                                      12           Testimony based on scientific  

based on practical experience in the relevant field."                                                                                                                                                                                                                                                                   

testimony is subject to the higher standard set out by the U.S. Supreme Court's decision  


                                                                                                                                                                                                      13                                                                                                                                                14  

                                                                                                                                                                                                             which we adopted in State v. Coon.  

in Daubert v. Merrell Dow Pharmaceuticals, Inc.,                                                                                                                                                                                                                                                                               


                           12                          Thompson v. Cooper                                                                  , 290 P.3d 393, 399 (Alaska 2012) (citing                                                                                                                              Marsingill  

v.  O'Malley, 128 P.3d 151, 159 (Alaska 2006)).                                                                                                                                                      

                           13                         509 U.S. 579 (1993).  Daubert  established the test for admissibility of  


 scientific expert testimony.  As described by this court, the Daubert test considers:  



                                                                                                                                                                          -8-	                                                                                                                                                            7083

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By contrast, experience-based testimony is admissible "when the expert witness has                                            


substantial experience in the relevant field and the testimony might help the jury."                                                          In  


Marron v. Stromstad we held that the Daubert requirements do not apply to accident  


reconstruction experts because such testimony "is clearly within the 'jury's everyday  


world experience and ordinary mode of reasoning' " and is "the sort of experience-based  

                                                                                                                          16  In affirming  


testimony the admission of which is encouraged by our rules of evidence." 

the      superior         court's        admission            of     testimony,           we      observed           that      "[a]ccident  


reconstructionists . . . have previously been allowed to testify in similar cases," and that  


it is "self-evident" that "the testimony of such experts assists the trier of fact."17  Like the  




                       (1) whether the proffered scientific theory or technique can  


                       be  (and  has  been)  empirically  tested  (i.e.,  whether  the  


                       scientific method is falsifiable and refutable); (2) whether the  


                       theory  or  technique  has  been  subject  to  peer  review  and  


                       publication; (3) whether the known or potential error rate of  


                       the  theory  or  technique  is  acceptable,  and  whether  the  


                       existence   and   maintenance   of   standards   controls   the  


                       technique's  operation; and  . .  . (4)  whether  the theory  or  


                       technique has attained general acceptance.  


State v. Coon, 974 P.2d 386, 395 (Alaska 1999) (citing Daubert, 509 U.S. at 593-94).  

           14          974 P.3d at 395.  


           15          Thompson, 290 P.3d at 399 (quoting Marsingill, 128 P.3d at 160).  


           16          123 P.3d 992, 1007 (Alaska 2005).  In this respect, we declined to follow  


the U.S. Supreme Court's decision in Kumho Tire v. Carmichael, 526 U.S. 137 (1999).  


In Kumho the Court expanded the Daubert requirements to cover all expert testimony,  


but  we  "never  adopted  Kumho  Tire's  extension  of  Daubert"  and  in  Marron  we  


"explicitly decline[d] to do so."  Marron, 123 P.3d at 1007.  


           17         Marron, 123 P.3d at 1008-09.  


                                                                       -9-                                                               7083

----------------------- Page 10-----------------------

accidentreconstructionist                                         in  Marron, Butcher was                                      similarly experiencedandhastestified                                       

in many similar cases.                    

                                  Martinez-Morales's argument that Butcher was insufficiently trained or                                                                                                                

qualified   is   also   unconvincing.     "There   is   no   requirement   that   a   witness   possess   a  

                                                                                                                                                                                18   "[T]he primary  

particular license or academic degree in order to qualify as an expert."                                                                                                                                 

criterion . . . is 'whether the jury can receive appreciable help from [that witness].' "19  


Butcher's failure to attend courses or publish in the field does not disqualify him from  


testifying as an expert witness. We affirmthe superior court's decision to permit Butcher  


to testify.  


V.               CONCLUSION  

                                  For the reasons discussed above, we AFFIRM the superior court in all  




                 18               Martha S. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                                                         

Servs., 268 P.3d 1066, 1077 (Alaska 2012) (alteration omitted) (quoting                                                                                                                         Handley v.   

State, 615 P.2d 627, 630 (Alaska 1980)).                                               

                 19               Marsingill, 128 P.3d at 159 (quoting Handley, 615 P.2d at 631).  


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