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, email 

corrections@appellate.courts.state.ak.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

ELIZABETH HEYNEN, 

Appellant, 

v. 

JULENE FAIRBANKS, 

Appellee. 

) 

) Supreme Court No. S-13834 

Superior Court No. 1JU-07-00710 CI 

O P I N I O N 

No. 6748 - February 1, 2013 

) 

) 

) 

) 

) 

) 

) 

) 

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

Judicial District, Juneau, Philip M. Pallenberg, Judge. 

Appearances: Caitlin Shortell, Shortell Gardner LLC, 

Anchorage, and Mark C. Choate, Choate Law Firm, Juneau, 

for Appellant. Paul W. Waggoner, Law Offices of Paul W. 

Waggoner, Anchorage, for Appellee. 

Before: Carpeneti, Chief Justice, Fabe, Winfree, and 

Stowers, Justices. [Christen, Justice, not participating.] 

CARPENETI, Chief Justice. 

I. INTRODUCTION 

A tenant fell on the outside stairs of her rented apartment and sustained a 

serious back injury. When she fell, one of the wooden stairs broke. She sued her 

landlord, from whom she subleased the apartment, alleging that her fall was caused by 

the landlord’s negligent failure to inspect and maintain the staircase. 
 

 

 

 

 

 

 

 

 

Before trial, the tenant filed a series of motions in limine, including one 

seeking to prevent the admission of evidence not previously disclosed during discovery 

on the issues of comparative negligence and failure to inspect and maintain, and another 

seeking to prevent the defendants from misstating the respective duties of landlords and 

tenants. The superior court denied these motions. At the close of evidence, the tenant 

moved for a directed verdict on the landlord’s comparative negligence defense and the 

landlord’s attempt to allocate fault to a deceased party. She also moved to preclude the 

landlord from making arguments based on medical records admitted at trial. The 

superior court denied each motion. The jury returned a verdict finding no negligence. 

The tenant appeals the denial of her motions in limine and for directed 

verdict, as well as the superior court’s denial of her motion to preclude opposing counsel 

from arguing from certain medical records. She also argues that the superior court erred 

in allowing the landlord to attempt to allocate fault to a deceased party. Finally, she 

argues that the jury’s finding that the landlord was not negligent was contrary to the 

evidence. 

Because the superior court did not err, because the jury’s verdict was not 

contrary to the evidence, and because the medical records issue is moot, we uphold the 

jury’s verdict and affirm the superior court’s rulings. 

II. FACTS AND PROCEEDINGS 

A. Facts And Pretrial Proceedings 

On October 21, 2006, Elizabeth Heynen (Heynen) fell on the exterior stairs 

of her second-floor rented apartment in Skagway. The apartment building was 

constructed by its owner, Leslie Fairbanks (Leslie), in 1990-91. In April 2006, Leslie 

leased the building to his daughter, Julene Fairbanks (Julene). Julene operated a 

specialty food store on the ground floor, where Heynen was an employee. Julene also 

rented the upstairs apartment to Heynen. 

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In June 2007, Heynen filed a complaint for personal injury. She alleged 

that she fell when she “exited her . . . apartment, intending to descend the outside 

stairway to take her dog for a walk” and “the edge of the first step below the upper 

landing crumbled underfoot causing her to fall down backwards, landing on her buttocks 

and severely striking her lower spine on the edge of the landing.” The complaint detailed 

Heynen’s medical problems following the fall, which she claimed caused immediate pain 

and permanent injuries and required her to have spinal surgery. Heynen further alleged 

that both Leslie and Julene had breached their duties as landlords to inspect, maintain, 

and repair the staircase and that their negligence had been a substantial factor in causing 

her injuries. Heynen sought general and special damages as well as fees and costs. 

Leslie and Julene each answered the complaint. They denied Heynen’s 

allegations and presented a number of affirmative defenses, including third-party 

negligence, failure to mitigate, and comparative negligence. Heynen filed an amended 

complaint on October 12, 2007, in which she argued that the defendants’ failure to 

maintain the premises as required by AS 34.03.100 1 constituted negligence per se. 

Heynen also filed a motion to establish, as “the law of the case,” that Leslie and Julene 

had a “duty to inspect, maintain and remedy dangerous conditions on the premises.” 

Leslie filed a motion for summary judgment on Heynen’s negligence per se claim. In 

January 2008, Superior Court Judge Philip M. Pallenberg issued an order granting both 

parties’ motions, though he made “no determination about whether Defendants’ statutory 

duties extended to the staircase at issue in this litigation,” which he noted would depend 

on whether or not the staircase was considered part of the rental premises or a “common 

area.” 

1 AS 34.03.100 imposes a duty on landlords to “maintain fit premises.” 

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During discovery, Heynen filed a request for admissions in which she asked 

Leslie and Julene to “admit there are no genuine issues of fact to support your third 

Affirmative Defense that Plaintiff Elizabeth Heynen’s ‘injuries, if any[,] were caused by 

and/or contributed [to] by her own negligence.’ ” Leslie and Julene declined to make 

this admission, stating that there were “genuine issues of fact as to how the accident 

occurred,” that discovery was ongoing, and that the defendants “anticipate[d] being able 

to further respond to this request after plaintiff’s discovery deposition.” Heynen 

subsequently filed a request for supplementation from Julene, asking her to “provide any 

information which she intend[ed] to present at trial” regarding the affirmative defenses. 

Julene did not respond to this request. Heynen did not file a motion to compel. 

In October 2008, Heynen filed a motion for partial summary judgment on 

Leslie’s and Julene’s affirmative defenses of comparative negligence and failure to 

mitigate. The superior court denied the motion as to comparative negligence. The court 

noted that Heynen’s motion for summary judgment relied on the argument that the 

defendants had not disclosed facts supporting their affirmative defenses, and that 

although this failure to disclose could merit discovery sanctions, it did not provide a basis 

for granting summary judgment. 

In March 2009, Heynen filed a motion for discovery sanctions based on 

Leslie’s and Julene’s “failure to provide a factual basis [for,] or to respond to[,] repeated 

discovery requests as to their affirmative defense of comparative negligence.” As a 

sanction for these alleged discovery violations, Heynen requested that the superior court 

preclude Leslie and Julene from asserting the comparative negligence defense at trial. 

The superior court denied this motion, explaining that “sanctions . . . only come into play 

if there is an order compelling discovery which is violated” and noting that Heynen did 

not “point to any fact, or any document, that defendants have not produced.” But the 

court invited Heynen to move to compel disclosures if she felt that “defendant’s 

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disclosures [were] inadequate,” and noted that if “defendants attempt to introduce 

evidence at trial which was not [previously] disclosed, [Heynen] may object under Rule 

37(c)(1).”2 

Before trial, Heynen filed a series of motions in limine. Motion in limine 

No. 2, filed in September 2009, requested a court order prohibiting the defendants from 

raising any new factual defenses to Heynen’s claim that her fall was caused by the 

defendants’ failure to inspect, repair, and maintain the stairway. Motion in limine No. 4 

requested an order prohibiting the defendants from presenting any facts not previously 

disclosed in support of their comparative negligence defense. 

On November 5, 2009, the superior court issued an order on Heynen’s 

motions in limine Nos. 2 through 6. The court granted three of Heynen’s motions, but 

denied motions No. 2 and No. 4. 

Heynen also filed motion in limine No. 8, which requested an order 

prohibiting defendants’ counsel from “miscommunicating the differing duties at issue” 

— specifically, the duties of landlords under the Uniform Residential Landlord and 

Tenant Act and the lesser duty of care imposed on tenants. The superior court denied the 

motion in an order that stated: “The parties are free to make arguments that note the 

similarities and the differences between their respective duties, as long as they do not 

2 Alaska Civil Rule 37(c)(1) provides, in relevant part: 

A party that without substantial justification fails to disclose 

information required by Rules 26(a), 26(e)(1), or 26.1(b) 

shall not, unless such failure is harmless, be permitted to use 

as evidence at a trial, at a hearing, or on a motion any witness 

or information not so disclosed. In addition to or in lieu of 

this sanction, the court, on motion and after affording an 

opportunity to be heard, may impose other appropriate 

sanctions. . . . 

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misstate the law.” The court also noted that the parties’ “duties are different, and counsel 

should not argue that they are the same.” 

B. Trial And Decision 

A jury trial was held in November 2009, with Julene as the sole defendant.3 

The jury heard testimony from a number of witnesses, including a construction expert, 

Julene, three of Heynen’s children, a biomechanics expert, an economist, an orthopedic 

surgeon, and Heynen. Julene also introduced the deposition testimony of Kurt Kosters, 

the contractor who built the staircase. Kosters’ testimony was introduced by deposition 

because he died before trial. Prior to the admission of Kosters’ testimony, Heynen moved 

for a directed verdict on Kosters’ liability for Heynen’s injuries, arguing that there was 

“no way a reasonable juror could conclude . . . that Mr. Kosters was negligent.” The 

superior court denied the motion but told Heynen’s attorney he could “renew [it] in the 

form of a judgment notwithstanding the verdict.” After Kosters’ testimony was 

introduced, Heynen’s attorney renewed the motion as a motion for a directed verdict and 

the court again denied it. Heynen’s attorney also moved for a directed verdict on the 

comparative negligence defense; he argued that “there’s been no evidence . . . that Ms. 

Heynen was . . . negligent in her descent of the staircase” and “the jury shouldn’t be asked 

to guess what might have happened.” The superior court denied this motion as well. 

3 Immediately before the beginning of trial, Heynen reached a settlement 

with Leslie, which “resolve[d] in full all claims against him . . . .” But at the conclusion 

of the trial, when counsel met with the court to discuss the special verdict form and jury 

instructions, Heynen’s attorney stated that Leslie was a defendant and had not been 

dismissed, arguing that “you can settle and not be dismissed.” The superior court 

allowed Leslie to be included as a defendant on the verdict form submitted to the jury. 

The jury found Leslie not liable. Leslie is not a party to this appeal, and neither Heynen 

nor Julene argues that he should be. 

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The jury found no negligence as to any of the parties listed on the special 

verdict form: Julene and Leslie Fairbanks, Kosters, and Heynen. Heynen did not file a 

motion for judgment notwithstanding the verdict. On March 17, 2010, the superior court 

entered a final judgment in favor of Julene and awarded her approximately $7,700 in 

Civil Rule 79 costs and approximately $9,770 in Civil Rule 82 attorney’s fees. Heynen 

appeals. 

III. STANDARD OF REVIEW 

When considering a claim that evidence offered at trial was insufficient to 

support a jury verdict, we review the record to determine whether “the verdict is contrary 

to the clear weight of the evidence.” 4 “In so doing, we are required to take the evidence 

and all inferences reasonably deducible [from the evidence] in the light most favorable 

to the appellee.”5 The goal of this inquiry is to ascertain whether “there has been a 

miscarriage of justice.”6 

Our “role in reviewing a grant of a motion for a directed verdict or JNOV 

is not to weigh conflicting evidence or judge the credibility of witnesses, but rather to 

determine whether [the] evidence, when viewed in light most favorable to the nonmoving party, is such that reasonable persons could not differ in their judgment.”7

 We 

have held that “[t]he test is objective; and, if there is room for diversity of opinion among 

reasonable people, the question is one for the jury.”8 

4 Bolden v. City of Kodiak, 439 P.2d 796, 801 (Alaska 1968).
 

5 Jakoski v. Holland, 520 P.2d 569, 575 (Alaska 1974).
 

6
 Bolden, 439 P.2d at 801. 

7 Korean Air Lines Co. v. State, 779 P.2d 333, 338 (Alaska 1989). 

8 Dura Corp. v. Harned, 703 P.2d 396, 402 (Alaska 1985) (citing City of 

(continued...) 

-7- 6748
 
 

 

 

 

 

 

 

 

 

 

 

We review a trial court’s rulings on a motion in limine according to the 

underlying relief sought in the motion. Here, the types of relief sought in the motions 

in limine — preclusion of evidence and a ruling on trial management — call for abuse 

of discretion review.9 

IV. DISCUSSION 

A. The Jury’s Verdict Was Not Contrary To The Evidence. 

Heynen argues that the evidence of Julene’s negligence “was so strong that 

reasonable persons could not differ in judgment,” and requests that the final judgment 

be vacated. Julene responds that Heynen “failed to make a motion for a directed verdict 

or any post-trial motion” on the issue of Julene’s negligence and is therefore precluded 

from arguing that the verdict should be set aside on appeal. In the alternative, Julene 

argues that the question of negligence was properly submitted to the jury and that the 

finding was supported by the evidence. 

1. Heynen has not waived the right to appeal the jury’s verdict. 

Heynen contends that the jury’s verdict was contrary to the evidence. 

Heynen did not move for a directed verdict at trial on the issue of Julene’s negligence, 

8 (...continued) 

Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 220 (Alaska 1978)); see also 

Cameron v. Chang-Craft, 251 P.3d 1008, 1017-18 (Alaska 2011) (noting that “[b]ecause 

conflicting evidence is not to be weighed and witness credibility is not to be judged on 

appeal, generally the only evidence that should be considered is the evidence favorable 

to the non-moving party — if that evidence is insufficient to allow a reasonable juror to 

find for the non-moving party, the trial court should grant a directed verdict or JNOV 

motion.”) (internal citations omitted). 

9 See State v. Doyle, 735 P.2d 733, 739-40 (Alaska 1987) (reviewing denial 

of motion in limine seeking to limit evidence to that previously disclosed in discovery 

for abuse of discretion); Booth v. State, 251 P.3d 369, 372-73 (Alaska App. 2011) 

(applying abuse of discretion standard where law “does not specify a particular ‘right’ 

answer or response to the situation”). 

-8- 6748
 
 

 

 

 

 

 

nor did she move for judgment notwithstanding the verdict. Julene argues that “to 

challenge a verdict as being inconsistent, a party must raise the issue before the jury is 

discharged,” and claims that Heynen is precluded from raising this argument on appeal. 

Julene relies on Roderer v. Dash10 to assert that Heynen is precluded from arguing that 

the jury’s verdict was contrary to the evidence. It is true that in Roderer we declined to 

review the superior court’s denial of judgment notwithstanding the verdict because the 

appellant had not previously raised the same issue in a motion for a directed verdict.11 

But Roderer is distinguishable from the instant case: Here, Heynen did not seek a 

judgment notwithstanding the verdict, nor did she move for a directed verdict. This case 

is governed by those cases in which we reviewed the sufficiency of evidence underlying 

a verdict absent a motion for directed verdict and a motion for judgment notwithstanding 

the verdict. In Bolden v. City of Kodiak, 

12 for example, we reviewed the record “to 

ascertain whether the evidence was [l]egally sufficient to support the verdict despite 

appellant’s failure to make a motion for directed verdict or for judgement n.o.v.”13 At 

oral argument, Julene conceded that Bolden applies; she did not ask that we reconsider 

or overrule it. 

2. The jury’s verdict was not contrary to the evidence. 

We have stated that questions of negligence should generally be resolved 

by the jury rather than foreclosed by the trial court through summary judgment or other 

10 233 P.3d 1101, 1106 (Alaska 2010). 

11 Id. at 1108. 

12 439 P.2d 796 (Alaska 1968). 

13 Id. at 801. See also Jakoski v. Holland, 520 P.2d 569, 575 (Alaska 1974) 

(reviewing the record “to ascertain whether the evidence was legally sufficient to support 

the verdict”). 

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means. 14 “If reasonable minds could draw different inferences . . . from the facts the 

issue must be reserved for trial.”15 In considering the sufficiency of evidence supporting 

a jury verdict on appeal, we inquire whether “the verdict is contrary to the clear weight 

of the evidence” to determine if “a miscarriage of justice” has occurred.16 In this inquiry, 

we draw all reasonable inferences “in the light most favorable to the appellee.”17 

Heynen argues that the evidence presented at trial “was such that reasonable 

persons could not differ in their judgment.” Heynen claims “uncontroverted evidence” 

established that Julene breached her duty to “inspect, maintain, and repair” the stairs; and 

that Julene’s breach caused Heynen’s injuries. Specifically, Heynen points to evidence 

that Julene did not actively inspect, repair, or maintain the staircase, and cites expert 

testimony indicating that the step broke as a result of moisture and rot. Heynen further 

argues that a connection between her fall, her injuries, and her resulting disabilities was 

conclusively established at trial. Julene disputes each of these points. 

First, while admitting that she had not physically tested the wood in the 

stairs to see whether it was punky or would give way under a knife, Julene noted that she 

“ha[d] been up and down the staircase” and the staircase “fe[lt] solid.” 

Second, as to the condition of the steps, Julene adduced evidence disputing 

Heynen’s claim that the break was due to negligence on Julene’s part. The steps at issue 

14 See, e.g., Maddox v. River & Sea Marine, Inc., 925 P.2d 1033, 1035-36 

(Alaska 1996) (attributing this rule to the “elusive nature of the concept of negligence, 

the determination of the existence of which requires the forming of a judgment as to the 

reasonableness of the conduct of the parties in light of all the circumstances of the case”) 

(quoting Webb v. City & Borough of Sitka, 561 P.2d 731, 735 (Alaska 1977)). 

15 Id. 

16 Bolden, 439 P.2d at 801. 

17 Jakoski, 520 P.2d at 575. 

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were constructed of untreated wood and were exposed to the elements (i.e., uncovered). 

Heynen’s expert, Marquam George, testified that the step likely broke due to the wood’s 

moisture content and the placement of a knot in the pattern of the wood. George 

performed a moisture reading on a sample of wood from the stair that broke, and he 

testified that it was in “the danger zone.” He explained that the danger zone “begins at 

28 percent moisture content” and that decay starts at this point. Julene’s attorney crossexamined George on the relevance of the moisture reading, since the tread was stored 

outside (in the rain) after it was removed from the staircase; George’s response conceded 

that it was possible that the moisture reading was affected by this storage method.18 

George also testified that the step had “failed along a natural defect within that board, 

being the knot.” When asked why the wood fractured, he responded: 

Well, it appeared to me a large part of that fracture could be 

because there was a large knot right on the leading edge of 

the stair. When we look at knots in wood, that’s a very 

unpredictable element within a piece of wood, that you really 

don’t know how it’s going to be affected . . . . 

George also testified that wood that is exposed to the elements has a useful service life 

in Southeast Alaska of between 10 and 20 years.19 The step in question had been 

installed 14 years earlier. 

Julene disputed that the step was rotten, and offered testimony in support 

of this position. Kenneth Graham, Julene’s partner, removed the broken step the day of 

18 George was equivocal: When asked whether it made a difference that wood 

was stored outside on the ground, in the rain, before the moisture reading was taken, he 

responded, “Perhaps, but perhaps not.” 

19 At another point, George stated that untreated wood has a service life of 10 

to 30 years, depending on its location in the United States. 

-11- 6748
 
 

 

 

the accident.20 He testified that the step was difficult to remove because it was “really 

solid wood,” not soft at all.21 The jury asked additional questions of Graham. In 

response to these questions, Graham denied that the step was rotten: “[N]o. . . when I 

took the step out there weren’t any rotten sections that I had to remove.” He further 

testified that there might have been some discoloration, but that the step “wasn’t 

waterlogged.” 

In light of all of this evidence, the jury could have concluded that a visual 

inspection of wooden stairs that “fe[lt] solid” was reasonable under the circumstances. 

The jury may have subscribed to the argument that Julene made at closing, and 

concluded that the flaw in the wood was a latent, natural flaw — not caused by rot — 

and therefore difficult or impossible to discover under the circumstances. Julene’s 

counsel made this argument at closing: 

Professor George . . . testified that the — the 

tread broke at the — at the knot, the natural 

grain. He did not say that had anyone pushed 

or tested or put a key in it or screwdriver or 

tested it, it would have shown, before this fall, 

that it should have been replaced. 

. . . . 

[George] personally examined it. He did not 

testify that it was soft, that it was punky, that it 

was rotten. No, not at all. 

In other words, even if Julene had been the most vigilant of landlords, if the step broke 

along a knot in the wood (which was characterized by Heynen’s construction expert as 

a “very unpredictable element” of wood), this is not the type of harm that she could 

20 Graham replaced two steps that day, since one other step appeared to have 

a crack in it. 

21 Graham was unable to remove the step with a nail-puller and a 22-ounce 

framing hammer, and instead had to use a two-pound sledge hammer and a crowbar. 

-12- 6748 
 

 

 

 

 

 

 

 

 

reasonably have been expected to find. Under this view, reasonable jurors could have 

differed over whether Julene was negligent. Under these circumstances, we conclude 

that the jury’s verdict was not contrary to the evidence. 

B.	 The Superior Court Did Not Abuse Its Discretion In Resolving 

Heynen’s Motions In Limine. 

Heynen argues that the superior court erred in denying her motions in 

limine No. 2 and No. 4, concerning the completeness of discovery, and No. 8, concerning 

the appropriateness of legal arguments to be made to the jury. 

1.	 The superior court did not abuse its discretion in denying 

motions in limine No. 2 and No. 4. 

In motion in limine No. 2, Heynen requested an order precluding Julene 

“from raising any factual defenses not previously disclosed to Plaintiff’s claim that her 

fall was caused by Defendants’ failure to inspect, repair and maintain the subject 

stairway.” In motion in limine No. 4, Heynen similarly requested an order precluding 

Julene from raising “new facts in support” of her comparative negligence defense for the 

first time at trial. In denying the two motions, the superior court wrote: 

The court expects parties to comply with the court rules, 

including the rules requiring discovery and disclosure. 

[Heynen] has not made a showing that [Julene] failed to do 

so. The court will not grant motions premised upon the 

assumption that there has been a violation without a specific 

showing. . . . If the evidence at trial does not support any 

defense, [Heynen] may move for a directed verdict on that 

issue. 

The superior court did not abuse its discretion in declining to issue an order 

precluding Julene from presenting undefined evidence at trial; nor does Heynen point to 

any evidence that was introduced without having been properly disclosed in advance. 

As the court noted, Heynen’s motions in limine No. 2 and No. 4 argued that Julene made 

inadequate disclosure during the discovery phase of the case. Heynen also alleged 

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inadequate disclosure in a request for supplementation and in a motion for discovery 

sanctions. 22 But Heynen never moved to compel Julene to produce specific evidence, 

nor did she ever object that Julene introduced previously undisclosed evidence at trial. 

To support her comparative negligence theory, Julene relied on testimony elicited from 

Heynen on cross-examination. The superior court’s denial of motions in limine No. 2 

and No. 4 was consistent with Alaska law and did not constitute an abuse of discretion. 

2.	 The superior court did not abuse its discretion in resolving 

motion in limine No. 8. 

In motion in limine No. 8, Heynen requested that the superior court “issue 

an Order prohibiting counsel for [Julene] from miscommunicating the differing duties 

at issue in this matter.” Heynen argued that Julene planned to conflate her affirmative 

duty of care as a landlord with Heynen’s duty of ordinary care as a tenant, and that “to 

allow such arguments [would] unduly prejudice the Plaintiff and confuse the jury.” 

Ruling on this motion, the superior court wrote: “The parties are free to make arguments 

that note the similarities and differences between their respective duties, as long as they 

do not misstate the law. Their duties are different, and counsel should not argue that they 

are the same.” 

Heynen argues that this order “invited [Julene] to confuse the distinction 

between the duty of a landlord as opposed to a tenant”; but she does not identify any 

objection to such an argument at trial.23 Further, nothing in the superior court’s order 

22 Heynen’s motion for discovery sanctions was essentially the same motion 

as her motions in limine; as sanctions, she sought an order precluding Julene from raising 

the comparative negligence defense at trial. 

23 In his closing argument, Julene’s attorney may have confused the duties of 

care; he argued that “Ms. Julene Fairbanks was also a residential tenant of her father.” 

But the court did not allow this argument, admonishing counsel that it was “not 

(continued...) 

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“invited” Julene’s counsel to confuse the two duties. The superior court did permit the 

parties to discuss and compare the legal standards governing the duties of care owed by 

landlords and tenants, but such discussions of the law are an important component of an 

advocate’s presentation of a case to the jury; indeed, Heynen’s counsel discussed 

landlord duty in depth during his closing argument. The superior court’s order expressly 

prohibited the parties from misstating the law or arguing that Heynen’s and Julene’s 

duties were the same.24 We discern no abuse of discretion in this ruling. 

C.	 The Superior Court Did Not Err In Denying Heynen’s Motion For 

Directed Verdict On The Issue Of Her Comparative Negligence. 

Heynen contends that “there was no evidence presented to create a question 

for the jury on whether [she] was comparatively negligent” and that the superior court 

erred in allowing this theory to be considered by the jury. We note first that the jury 

found no negligence on Heynen’s part; accordingly, any error would have been harmless 

because Heynen was not prejudiced by the superior court’s action. 

But because Heynen argues that the mere giving of a comparative 

negligence instruction was confusing to the jury, we also address this issue on the merits. 

We conclude that the superior court did not err in its instructions on this matter. After 

the close of evidence, Heynen moved for a directed verdict on the issue of her 

comparative negligence. The superior court denied this motion ruling that the jury could 

draw “[a] reasonable inference . . . that a substantial factor in [Heynen’s] fall was the fact 

that she stepped so close to the edge of the step.” The jury found that Heynen was not 

23 (...continued) 

accurate.” 

24 Thus, it is not clear to us that the superior court denied Heynen’s motion 

at all. Heynen essentially sought the order provided by the court: the preclusion of 

misleading conflation of the different duties of care at issue. 

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comparatively negligent, but it also found that the other parties listed on the verdict form 

were not negligent. On appeal, Heynen challenges the superior court’s denial of her 

motion for a directed verdict, arguing that the comparative negligence defense “confused 

the jury so that the resulting verdict was contrary to the evidence presented.”25 

We will not reverse a superior court’s denial of a motion for directed 

verdict unless the “evidence . . . is such that reasonable persons could not differ in their 

judgment.”26 In rejecting Heynen’s argument that the jury’s verdict was contrary to the 

evidence, we determined that reasonable jurors could have found Heynen’s own actions 

contributed to or caused her fall. The evidence supporting the jury’s verdict — 

specifically, evidence that Heynen was holding her dog’s leash with her dominant hand, 

that she does not remember looking at the stairs, and that she may have stepped very 

close to the leading edge of the step — created a question of fact for the jury concerning 

whether Heynen was comparatively negligent. When viewed in the light most favorable 

to the nonmoving party,27 the evidence was such that a reasonable juror could have found 

that Heynen was comparatively negligent. 

We are not persuaded by Heynen’s argument that the jury was somehow 

confused by the existence of Julene’s comparative negligence defense. We trust jurors 

to consider properly presented claims and defenses within the contours of jury 

instructions. Heynen’s argument seems to imply that because the jury did not find 

25 Heynen frames the issue on appeal as: “Whether the Superior Court erred 

in allowing [Julene] to argue to the jury that [Heynen] was comparatively negligent.” 

Heynen argues that the question of comparative negligence should not have been 

submitted to the jury, which is essentially an appeal of the superior court’s denial of her 

motion for a directed verdict. 

26 Korean Air Lines Co. v. State, 779 P.2d 333, 338 (Alaska 1989). 

27 Id. 

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negligence on the part of any of the parties, it must have been confused. But the 

existence of negligence is not a necessary precondition to the occurrence of a personal 

injury. The superior court did not err by denying Heynen’s motion for directed verdict 

on the issue of comparative negligence. 

D.	 The Superior Court Did Not Err In Denying Heynen’s Motion For 

Directed Verdict On Kosters’ Liability. 

Heynen argues that the inclusion of Kurt Kosters on the special verdict 

form as an individual to whom fault could be allocated “was improper and confusing 

because Mr. Kosters was an employee and agent of Mr. Fairbanks and thus any 

allocation of fault was imputable to Mr. Fairbanks, who was dismissed from the action 

by stipulation of the parties.” She also contends that “the allocation of fault to Mr. 

Kosters was meritless as Mr. Kosters was deceased at the time of trial and had no estate.” 

As with the previous issue concerning Heynen’s argument on comparative negligence, 

the jury found no negligence on the part of Kurt Kosters. Again, we conclude that any 

error would therefore be harmless. But because Heynen argues that the giving of this 

instruction confused the jury, we consider the matter on the merits. We conclude that the 

superior court did not err in instructing the jury. 

Heynen moved for a directed verdict on this issue at trial, claiming that 

there was “no way a reasonable juror could conclude . . . that Mr. Kosters was 

negligent.” Heynen also argued that it was improper to allocate fault to an employee 

who merely “did what was on the plans.” 

The superior court denied the motion for directed verdict, ruling: 

I will allow this to go to the jury . . . . It’s not an 

extraordinarily technical subject. There is some testimony 

about the way the treated and untreated wood hold up in the 

environment . . . from Mr. George. There’s testimony about 

Mr. Kosters, as to the consequences of that choice. . . . And 

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so I will allow the jury to allocate fault on that issue at this 

point. 

The superior court also rejected Heynen’s argument that allowing the jury to consider 

allocating fault to Kosters was improper because it “allocated fault in another direction 

to [Leslie Fairbanks],” who was no longer a party. The court noted that “the legal issue 

under the doctrine of respondeat superior . . . is an entirely different question,” and 

concluded that “[e]mployees don’t have immunity from liability.” At the close of 

evidence, Heynen renewed the motion for directed verdict; the court again denied it. The 

jury found that Kosters was not negligent. 

It was not error to deny the motion for directed verdict because reasonable 

jurors could have concluded that Kosters was, or was not, negligent. The jury heard 

testimony suggesting that Kosters may have been negligent in failing to use treated wood 

on the exterior stairs where Heynen fell. Kosters testified, in a deposition transcript read 

to the jury, that he decided what type of wood would be used to build the stairs and that 

there was never any discussion about possibly waterproofing the wood.28 One of 

Heynen’s experts testified that the stairs were constructed using untreated wood, and that 

the use of treated wood would have better protected the stairs from the elements. 

Kenneth Graham (Julene’s domestic partner) also testified that untreated wood may rot 

and fail if exposed to the elements. On the basis of this evidence reasonable jurors could 

have found that Kosters bore some responsibility for the condition of the stairs. 

Alternatively, reasonable jurors could have concluded, as Heynen argued, that Kosters 

was not negligent. The superior court did not err in denying Heynen’s motion for a 

directed verdict on the issue. 

Kosters gave conflicting testimony about his level of responsibility for 

making substantive decisions about the construction of the stairs, but he unambiguously 

indicated that he chose what type of wood to use. 

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Heynen’s other arguments challenging the propriety of allowing the jury 

to consider allocating fault to Kosters are unpersuasive. As the superior court properly 

noted, there was no reason that Leslie’s role in the trial and his relationship to Kosters 

should have prevented the jury from considering whether Kosters negligently caused the 

accident. Though Heynen reached a settlement with Leslie, fault could still be allocated 

29 30 or imputed to Leslie under AS 09.17.080 as a party to the suit. We see no merit to 

the argument that Heynen was prejudiced by the inclusion of Kosters on the special 

verdict form. No fault was allocated to Kosters — which was the result Heynen 

advocated for — and there is no indication that including his name on the special verdict 

form confused the jurors. The superior court did not err in denying the motion for 

directed verdict that sought a ruling that Kosters was not negligent. 

29 “In all actions involving fault of more than one person, including thirdparty defendants and persons who have settled or otherwise been released, the court . . . 

shall instruct the jury to answer special interrogatories . . . indicating . . . the percentage 

of the total fault that is allocated to each [person].” AS 09.17.080(a)(2) (emphasis 

added). 

30 Additionally, an allocation of fault to Kosters would not necessarily be 

imputed to Leslie; the court never ruled that Kosters was Leslie’s employee. Kosters 

could have been an independent contractor, in which case the doctrine of respondeat 

superior would not have applied. See, e.g., Parker Drilling Co. v. O’Neill, 674 P.2d 770, 

775 (Alaska 1983) (noting that employers are ordinarily not liable for the torts of 

independent contractors). 

It is also irrelevant that Kosters was deceased and had no estate. Kosters’ 

estate was not exempt from liability, and there is no rule stating that judgment-proof 

individuals cannot be tort defendants. 

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E. Heynen’s Argument Concerning Admission Of Her Medical Records 

Is Moot. 

Heynen argues that the superior court abused its discretion in admitting her 

medical records from the 1980s and 1990s, when she was involved in multiple car 

accidents. This evidence might have been relevant in the jury’s assessment of causation 

or damages had it found that Julene was negligent. Because it returned a verdict of no 

negligence, however, this point is moot. We therefore decline to reach it. 

V. CONCLUSION 

We AFFIRM the decisions of the superior court. 

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