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Lindbo v. Colaska, Inc.

Supreme Court of Alaska

March 23, 2018

KEVIN W. LINDBO, Appellant,

          Appeal from the Superior Court of the State of Alaska No. IKE-14-00128 CI, First Judicial District, Ketchikan, Trevor Stephens, Judge.

          Paul A. Clark, Clark Legal Services, Jersey City, New Jersey, for Appellant.

          Gregory R. Henrikson, Walker & Eakes, Anchorage, for Appellee Colaska, Inc.

          Daniel T. Quinn, Richmond & Quinn, Anchorage, for Appellee Matthew Lindley.

          Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger, Justices.

          Carney, Justice, not participating.




         An asphalt plant operator threw a can at a driver waiting outside his truck to get his attention, striking him in the back. The driver brought negligence and battery claims against the plant operator and his employer, but was awarded minimal damages after trial. The driver now appeals several of the superior court's decisions regarding jury instructions, evidentiary rulings, and pre- and post-trial orders. But because we find no error in the superior court's decisions, we affirm the judgment.


         In August 2012 Kevin Lindbo was working as a truck driver for Karlson and Karlson, Inc. (K&K), delivering asphalt from Colaska Inc.'s plant to a paving project. On August 21 Lindbo drove to Colaska's plant, stopped, and stepped out of his truck, turning his back to the machinery. The plant operator, Matthew Lindley, gestured and yelled at Lindbo, trying to direct him to drive to the asphalt loading area. But unable to hear Lindley amidst the loud noises at the plant, Lindbo was unresponsive. Lindley then picked up a can and threw it in Lindbo's direction, apparently attempting to get his attention. The can struck Lindbo in the lower back. Lindbo dropped to his hands and knees and soon after went to an emergency room for medical treatment.

         In March 2014 Lindbo filed suit against Colaska and Lindley, alleging the blow from the can caused him ongoing pain requiring medical attention. Lindbo claimed that Lindley's actions constituted battery and negligence and that Colaska was vicariously liable for Lindley's actions. Lindbo sought punitive damages, and he sought compensatory damages for past and future medical expenses, past and future loss of income, past and future pain and suffering, mental anguish, loss of enjoyment of life, physical impairment, and inconvenience.

         A five-day jury trial took place in June 2015. The jury found that Lindley had not committed a battery, but that he had been negligent and that his negligence was a substantial factor in causing Lindbo harm. The jury awarded Lindbo just over $2, 500 in compensatory damages.

         Lindbo appeals, contending that the superior court erred by: (1) failing to give a spoliation jury instruction on Colaska's failure to preserve the can that hit him; (2) allowing a witness to refresh his recollection with late-discovered documents and subsequently admitting the documents into evidence; (3) admitting Lindbo's past medical records, including a history of prescription drug use, and evidence of late child support payments; (4) admitting evidence of Lindbo's prior conviction for attempted vehicle theft; (5) failing to correct improper "vouching" during closing arguments; and (6) denying his request for a new trial.


         "The correctness of jury instructions is reviewed de novo."[1] But the failure to give a jury instruction is grounds for reversal only if it caused prejudice.[2] "In evaluating whether there has been prejudicial error with regard to jury instructions, we put ourselves in the position of the jurors and 'determine whether the error probably affected their judgment.' "[3] Failure to instruct the jury on a particular ground when no party requested that instruction is reviewed for plain error.[4] Plain error exists when "a correct instruction would have likely altered the result."[5]

         "Rulings on discovery and on discovery sanctions are generally reviewed for abuse of discretion."[6] "We review a trial court's decision to admit evidence, including the testimony of a witness, for abuse of discretion."[7]

         We review a decision to admit evidence under Alaska Evidence Rule 403 by "balancing] the danger of unfair prejudice against the probative value of the evidence 'to determine whether the potential danger predominated so greatly as to leave us firmly convinced that admitting the challenged evidence amounted to a clear abuse of discretion under Evidence Rule 403.' "[8]

         A court's "refusal to grant a new trial is reviewed under an abuse of discretion standard."[9]

         When deciding questions of law, we "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."[10] For mixed questions of law and fact, "we review factual questions under the clearly erroneous standard and legal questions using our independent judgment."[11] We will find clear error only "when we are left with a definite and firm conviction based on the entire record that a mistake has been made."[12] We will find an abuse of discretion upon a showing that a decision was "arbitrary, capricious, manifestly unreasonable, or stemmed from improper motive."[13]


         A. The Superior Court's Failure To Give An Adverse Inference Instruction Was Not Plain Error.

         Before trial it became clear that the parties would offer conflicting testimony on the size and weight of the can thrown at Lindbo. Lindbo testified that he was hit with a heavy axle grease can; Lindley testified that he threw "an empty aerosol can." The can was not preserved.

         Lindbo moved before trial for an adverse inference jury instruction based on Colaska's failure to retain the can.[14] Lindbo argued that the can's absence hindered his case because his testimony on its weight could not be corroborated. The superior court denied the motion without prejudice, advising Lindbo to renew his request at trial if the evidence presented warranted the instruction. Lindbo did not renew his request. Lindbo nonetheless appeals the superior court's failure to give an instruction.

         Plain error review applies when a party failed to properly raise a jury instruction error at trial.[15] An objection is properly raised only if that party "provide[d] the superior court with an 'identifiable opportunity to rule' on the issue."[16] A pretrial motion for a non-specific, generalized jury instruction - denied without prejudice to a renewed request when jury instructions are being prepared-without a follow up request for a specific instruction at the close of evidence does not provide an identifiable opportunity to rule.[17]

         Lindbo's appeal falls squarely under this rule. The superior court denied his pretrial motion without prejudice, advising that he "is requesting a jury instruction and . . . may request a jury instruction during trial if the evidence actually presented warrants it." But Lindbo never took the court's suggestion by providing specific language for an instruction at trial. We therefore review his appeal for plain error.

         Applying the plain error standard, there is no reversible error here. Plain error exists when "an obvious mistake has been made which creates a high likelihood that injustice has resulted."[18] This standard requires the error to be prejudicial; there must be a "reasonable probability that [the error] affected the outcome of the proceeding."[19]

         Such a probability does not exist here. The jury verdict reflects that Lindley did not commit a battery, that Lindley's negligence caused Lindbo harm, that Lindbo had past economic loss (limited to wage loss) but no future economic loss, [20] and that Lindbo had past non-economic loss but no future non-economic loss. It is unclear which finding, if any, could have been changed by an adverse inference instruction. First, the battery finding turned on Lindley's intent.[21] Given that in Lindbo's closing argument he was able to attack Lindley's credibility by focusing on the can's weight, but that the jury still found no intent to make contact, adding an adverse inference instruction likely would have made no difference.[22] Second, Lindbo's economic loss was proven by Lindbo's medical records and work logs. The can's weight could not have changed this finding.

         The only finding that the can could possibly have changed was Lindbo's non-economic loss; a heavier can could have caused him greater pain and suffering. But here too we are not persuaded that the failure to give an instruction created a "high likelihood that injustice has resulted."[23] Lindbo was able to testify that he "feared for [his] life, " that he required a pain injection at the emergency room, that the incident left him "in shock, " that it caused "really bad leg pains and muscle spasms, " that he was "in pain a lot and ... didn't know what to do, " and that he still suffered "weakness in [his] left leg" and a "slight limp." The jury thus had ample testimony to make its non-economic loss award, but given (1) its failure to award any amount for past and future medical expenses, and (2) as discussed below, evidence of Lindbo's return to part-time work shortly after the incident, we are not convinced that adding an adverse inference instruction would have made any difference to the award's final amount.

         B. The Superior Court Did Not Abuse Its Discretion By Permitting The Use Of Late-Disclosed Documents To Refresh A Witness's Recollection And By Later Admitting Those Records Into Evidence.

         On the second day of trial Colaska tried to admit 2 of 20 load sheets - which are filled out by K&K's drivers each work day and include when those drivers started and finished their work - showing that Lindbo returned to work shortly after being hit with the can. Because the 20 load sheets were not previously disclosed during discovery, the superior court ruled they could be used only to refresh a witness's recollection. Later that day K&K's owner, Daniel Karlson, testified that he believed Lindbo "did come back to work after th[e] incident... once or twice" as an extra driver but he could not remember the exact dates. After Karlson refreshed his recollection by looking at the previously undisclosed load sheets, he testified that after the August 2012 incident he thought Lindbo came back to work on September 8 and October 6.

         On the fourth day of trial Lindbo sought to admit only the 18 K&K load sheets showing when he worked prior to the incident; he did not want to admit the last two K&K load sheets showing that he worked after the incident. The superior court ruled that if Lindbo sought to admit the 18 earlier load sheets, Colaska could admit the remaining two. Lindbo chose to have all 20 of the load sheets admitted.

         1. Permitting Karlson to refresh his recollection under Alaska Evidence Rule 612(a) did not contravene Alaska Civil Rule 37(c)(1).

         Lindbo argues that allowing Karlson to refresh his recollection with previously undisclosed load sheets violated Alaska Civil Rule 37(c)(1). Rule 37(c)(1) states: "A party that without substantial justification fails to disclose information required... shall not, unless such failure is harmless, be permitted to use as evidence at trial" the undisclosed information.[24] Lindbo contends Karlson did not use the documents to refresh his recollection, but he instead "read ... them [into the record] verbatim."

         We disagree with Lindbo's characterization. Colaska did not "use [the load sheets] as evidence at trial";[25] Colaska instead used the load sheets to refresh Karlson's recollection. Prior to refreshing his recollection Karlson had testified that Lindbo worked for him on two occasions after the incident. We are therefore unconvinced that Karlson testified on this point from the load sheets instead of from his memory; any subsequent error arising from Karlson talking about the load sheets when he had them in front of him would be harmless because they later were moved into evidence.

         Alaska Evidence Rule 612(a) states that "[a]ny writing or object may be used by a witness to refresh the memory of the witness while testifying."[26] We have held that:

Under this rule, a document need not be admissible to be used to refresh a witness's memory. Instead, if the party using the document does not wish to admit it, Rule 612(a) simply allows any party seeking to impeach the witness whose memory is refreshed the right "to inspect the writing ..., to cross-examine the witness thereon, and to introduce those portions which relate to the testimony of the witness." By expressly granting the right to immediate inspection, the rule implicitly recognizes the absence of a pretrial duty of disclosure[27]

         Furthermore, because Evidence Rule 612(a) allows any writing to be used for refreshing recollection, [28] we reject Lindbo's argument that refreshing a witness's recollection by using a previously undisclosed document violates Civil Rule 37(c)(1).[29] The superior court did not err or abuse its discretion by allowing Karlson to use previously undisclosed load sheets to refresh his recollection.

         2. Any error in admitting the late-disclosed documents was harmless.

         Lindbo argues that he should have been permitted to enter only the load sheets demonstrating his preinjury work history because Rule 37(c)(1) forbade the late-disclosing party from admitting the other two load sheets into evidence. He contends the admission of the last two load sheets was prejudicial and that he was afforded no time to rebut the new evidence. We conclude that any possible error from admitting the post-injury load sheets was harmless.

         Lindbo's primary argument on appeal is that although discovery sanction issues are usually reviewed for abuse of discretion, Rule 37(c)(1) "mandates" a sanction, leaving the court "no discretion" in its application. But under Rule 37(c)(1) exclusion is just the express immediate sanction;[30] the Rule should not be read as completely removing the superior court's discretion over evidentiary matters.[31] Here, the superior court did exclude the two load sheets when Colaska sought to admit them initially. Lindbo then sought to admit only the preinjury load sheets that helped him present his case, which the superior court correctly noted "would have created the impression that K&K's complete records for Mr. Lindbo's work . . . were being admitted" and "the absence of any records after the date of his injury [could wrongly] evidence . . . that Mr. Lindbo did not work for Mr. Karlson because he was too injured to do so, which would be entirely inconsistent with the records... at issue." We agree with the superior court that Lindbo's desired sanction would have misrepresented the evidence, and we do not read Rule 37 to require the jury to receive a false impression of the evidence as the sanction for a discovery violation.

         Lindbo also argues that the admission of the two load sheets was prejudicial because he had "no opportunity to counter it." We agree with Lindbo that being forced to choose between letting all of the load sheets in or excluding all of them put him in a difficult position. But Lindbo has the burden of showing prejudicial error, and we are not convinced that the superior court's actions had any impact on the verdict.[32] Thus, even if we were to go so far as to find an abuse of discretion, any error was harmless.

         First, admitting the last two load sheets - indicating that Lindbo worked on September 8 and October 6 - was not prejudicial because other evidence already demonstrated that Lindbo was physically able to, and in fact did, work following the injury. Karlson testified that Lindbo worked for him "a couple of times" after the incident, observing that Lindbo appeared "fine" with no noticeable limping or pain. Colaska's asphalt plant manager, John Logsdon, also testified that he recalled Lindbo hauling loads at the plant after the incident, saw Lindbo discussing the injury with others, and expressly told Lindbo to "get back in your truck and just don't talk to these guys." Logsdon definitively placed that day as the "sixth of October." Lindbo himself also implied in his complaint that he went back to work, alleging an exchange he had with Logsdon after the incident and how Colaska did not call Lindbo back to work after that post-incident exchange.

         Second, Lindbo was not prejudiced by the timing of the newly discovered evidence. Contrary to his claim that he was "unable to take any action to investigate if the [last two load sheets] were accurate or obtain evidence to rebut the new evidence, " Lindbo did refute the accuracy of the load sheets through testimony. When asked specifically about the October 6 sheet, Lindbo testified that although his name appeared in his handwriting, he had left many otherwise blank load sheets filled out with his name in his truck at the plant, implying that someone else may have filled it out. And Lindbo did not ask for a continuance "requesting] additional time to obtain and present other evidence related to his whereabouts on September 8 ... and October 6, 2012." Lindbo never suggested any alternative sanction that could have punished Colaska without causing him unfair surprise, which he was surely entitled to do as the victim of a discovery violation. Lindbo's failure to take any action in the superior court to ameliorate the surprise, except to insist that he was entitled to present a distorted view of the evidence, cautions us against now finding prejudice on this record.

         We therefore hold that error, if any, in how the superior court sanctioned Colaska or dealt with the admission of the load sheets, was harmless.

         C. Lindbo's Arguments About His Drug Use, Child Support Payments, And Prior Injuries Are Meritless Or Abandoned.

         1. The superior court did not abuse its discretion by denying Lindbo's motion to exclude all evidence of drug use, and any objection to ...

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