Dora Noffke v. Jose Perez and Neyda Perez

This appeal arises from a car accident on Lake Otis Parkway in Anchorage
in which Dora Noffke's vehicle struck a car driven by Jose Perez. A jury awarded Jose
Perez $24,000 and passenger Neyda Perez $54,000 for past and future damages, and
Dora Noffke appeals several decisions of the superior court. Noffke argues that the
superior court erred by excluding certain medical records exhibits, requiring her expert
witness to produce his income tax records, granting a directed verdict on comparative
negligence to the Perezes, and unnecessarily delaying entry of final judgment. Because
the trial court's erroneous decision to exclude Jose Perez's medical records was
prejudicial and because there was sufficient evidence to send the issue of comparative
negligence to the jury, we reverse and remand for a new trial.

II. FACTS AND PROCEEDINGS

On May 10, 2003, Dora Noffke was traveling north on Lake Otis Parkway.
She pulled into the left-hand turn lane to make a left turn into a strip mall.1 There was
evidence that the right-hand southbound lane of Lake Otis was blocked due to road
construction south of the accident site, causing congestion in the left-hand southbound
lane. The right-hand southbound lane was mostly clear at the accident site. A motorist
in the left-hand southbound lane waved at Noffke to signal that she could turn in front
of him across the oncoming traffic. Noffke failed to check if the right-hand southbound
lane was empty when she made the turn across the southbound lanes. Noffke turned in
front of the car driven by Jose Perez, who was proceeding southbound in the right lane,
causing a collision. Noffke and her passenger, Bobby Rice, were taken to the hospital.
Neyda Perez, the passenger in the Perez car, was also taken to the hospital from the
scene, while Jose rode along in Neyda's ambulance and was checked at the emergency
room.

Trial was held before Superior Court Judge Mark Rindner. Noffke
conceded negligence, and Judge Rindner granted the Perezes' request for a directed
verdict on the issue of comparative negligence. Thus, the only questions left for the jury
were whether Noffke was the legal cause of injury to Jose and Neyda and the amount of
damages to which Jose and Neyda were entitled for past economic loss, as well as past
and future non-economic loss. The jury awarded Jose $24,000 and Neyda $54,000.
Judge Rindner entered final judgment on January 3, 2006, and Noffke appeals.

III. STANDARD OF REVIEW

We review the superior court's evidentiary rulings for abuse of discretion.2
The court's discovery rulings are also reviewed for an abuse of discretion.3 An abuse of
discretion will be found when we are "left with a definite and firm conviction after
reviewing the whole record that the discovery ruling was erroneous."4 The superior
court's award of discovery sanctions is reviewed for abuse of discretion.5 The court's
decision to admit expert testimony is reviewed for abuse of discretion, but where the
admissibility of expert testimony turns on a question of law, we apply our independent
judgment.6 When reviewing an order granting a directed verdict, we must decide
"whether the evidence, when considered in the light most favorable to the nonmoving
party, is such that reasonable persons could not differ in their judgment."7

IV. DISCUSSION

A. It Was Error To Exclude Noffke's Proposed Medical Records Exhibits
and To Refuse Noffke's Requested Continuance To Subpoena Records
Custodians.

At the pretrial conference on November 18, 2005, Noffke requested that the
parties stipulate to the "authenticity" and "foundation" of a number of exhibits relating
to Jose Perez's medical treatment. Although Perez's attorney reserved her objections to
the relevancy of the medical records exhibits in question, the parties agreed that it would
not be necessary for Noffke to subpoena the records custodians for trial:
MR. WAGGONER [Noffke's attorney]: . . . I would like an
answer about the foundation for medical records because it
makes a difference as to who I'm going to subpoena. They're
just medical records and I can clearly subpoena enough
people to get them all into evidence, but I was just wondering
what the plaintiff is going to require.

. . . .

THE COURT: . . .[T]he question is whether you're going to
say bring in the records custodian for each and every provider
of the medical records to sit up here for five or ten minutes to
testify that these are the medical records of the plaintiffs,
they're kept in the ordinary course of business to satisfy the
requirements of the hearsay rule and then their authenticity
will be done then, or everybody can say they don't have any
objections to authenticity, they're reserving objections to
relevance and that sort of stuff and you don't need witnesses.

I'll rule on the relevance as I hear the testimony and what it's
being offered for.

MS. KELLEY CANTERBURY [the Perezes' attorney]: I
don't have a disagreement. I agree that those are the records.

There's no authenticity problems.

. . . .
MR. WAGGONER: That's fine. I will stipulate to the

foundation of medical records.

THE COURT: Does everybody agree we don't need - that
the foundation is established but that objections as to
relevance and other things are not established but that nobody
needs to produce custodians of medical records to go through
the drill of doing that? I think that's all you're both asking
for.

MS. KELLEY CANTERBURY: Yes.

MR. WAGGONER: Right.

Relying on this agreement, Noffke sought at trial to introduce evidence of
the Perezes' preexisting medical conditions, asserting, "[i]t's my understanding there's
no foundation objection to these older medical records, Your Honor." At that time, the
trial court instructed Noffke's attorney to pare down the exhibits, directing Noffke to
"narrow [the exhibits] down to matters that might have some relevance [] to this case"
in order to avoid "dumping" all of the records on the jury.

During her cross-examination of Jose Perez, Noffke again sought to
introduce Exhibit M, which contained a number of exhibits that were prepared to
determine the Perezes' eligibility for disability benefits from the Social Security
Administration. The trial court advised: "You're going to have to lay a foundation for
that." The trial court also instructed Noffke to break Exhibit M into smaller exhibits,
warning, "I'm not admitting that unless there's [a basis] laid for portions of it . . . either
[for] relevance or otherwise."

After Jose Perez completed his testimony, Noffke complied with the trial
court's instruction and divided Exhibit M into seven smaller exhibits, marked M1
through M7. The Perezes objected to all of these exhibits as hearsay, asserting that
"[t]hese aren't medical records" and complaining that Noffke had failed to examine Jose
Perez about them when he was still on the witness stand. When the trial court expressed
doubts about the exhibits, Noffke responded, "[t]here's no foundation objection and some
of the other M records are definitely medical records and I think they should be
admitted."

Although the trial court admitted those documents in the exhibits that
contained Jose Perez's signature, such as a disability report form that Perez submitted to
the Social Security Administration in which he provided information about his medical
conditions, the trial court disallowed exhibits M3 through M7 on hearsay grounds, noting
that they had been gleaned from Jose Perez's Social Security file and that there was no
evidence establishing that they were medical records:

THE COURT: [Exhibit M3] is hearsay and I see no exception
for it. The fact that it's a medical record hasn't been
established by testimony. It may well be one, but you needed
to call somebody to do that. . . . You haven't established that
it's not hearsay, Mr. Waggoner.

. . . .

MR. WAGGONER: You say [Exhibit M4 is] not a medical
record?

THE COURT: I'm saying that you haven't established
[through] eviden[ce] that it's a medical record - the
circumstances under which it was created. You need a
witness to testify that this is a medical record kept in the
regular course of business. . . . And all we know is that it
comes from Social Security records, not even from a medical
doctor's records. So you've got to - I realize this may seem
like form over substance, but you've got to establish a
hearsay exception for these documents to be admitted and
you haven't.

. . . .

MR. WAGGONER: Yeah. At the pretrial conference, I
specifically asked about foundation for medical records.....

THE COURT: And this is not a foundation.....

MR. WAGGONER: ......for the purpose.....

THE COURT: This is not a foundation ruling. It's a hearsay
ruling.

The trial court went on to exclude a Northern Rehabilitation Services report,
Exhibit G, ruling: "You have to establish not just that they're medical records but they're
kept in the regular course of business." The trial court also declined on hearsay grounds
to admit Westchester Physical Therapy records, Exhibit K; Independent Medical
Evaluation reports of Dr. James, Exhibits L and P; and an evaluation for work by Dr.
Lipke, Exhibit S.

The next morning before closing arguments, Noffke again attempted to
introduce her exhibits. The trial court reiterated that its ruling was not a foundation
ruling but a hearsay ruling and refused to admit the exhibits. Noffke asked for a short
continuance of one business day, from Friday to Monday, to call the records custodians
to lay the foundation for the unadmitted exhibits; the trial court denied this request.
Noffke then sought to introduce Exhibit I, Jose Perez's medical records from Kremer
Chiropractic in 1998-1999. The trial court admitted only a medical information form,
which had been signed by Jose Perez and on which Jose had described his symptoms and
medical history, characterizing it as "an admission." But the court did not permit other
chiropractic records, including a radiology consultation and the chiropractic clinic patient
history form.

Noffke argues that the medical records exhibits should have been admitted,
maintaining that the parties waived any foundation objections when they entered the
stipulation at the pretrial conference. Noffke reasons that if a party is required to call a
records custodian to establish that a document is a business record, then waiving
foundation objections serves no purpose. Noffke also contends that once she learned that
the trial court would require testimony to establish that the proposed exhibits were
business records, despite the earlier stipulation on foundation, she should have been
granted the requested one-day continuance to allow her to subpoena and procure the
testimony of the various records custodians. Noffke maintains that in the context of the
disputed exhibits, the stipulation as to the foundation of the medical records removed the
need to call witnesses to establish the business records exception to the hearsay rule.
Our analysis begins with a parsing of what the parties agreed upon in their
November 18, 2005 pretrial conference. The conference included an informal attempt,
under Alaska Civil Rule 36, to "[r]equest[] that documents which clearly fall within a
hearsay exception be admitted without having to put the record-keeper on the stand," one
of the "central purposes for which Rule 36 was designed."8 The transcript reveals that
the parties arrived at a stipulation that "[t]here [are] no authenticity problems," "the
foundation is established," and "nobody needs to produce custodians of medical records."

The wording of this oral stipulation was unfortunately imprecise. The
parties not only conflated the terms "authenticity"9 and "foundation,"10 but also vaguely
referred to the subjects of the stipulation as "medical records." Calling Noffke's
proposed exhibits "medical records" was confusing because the exhibits Noffke
attempted to introduce were not obtained from doctors' offices, but rather consisted
primarily of medical records prepared to determine the Perezes' eligibility for Social
Security disability benefits. The Perezes did not discuss the origin of the exhibits during
the pretrial conference and entered into the stipulation having had ample opportunity to
review and object to the records. Later, when it became clear to the court that the records
Noffke wished to introduce were not typical medical records, the court ruled that the
foundational requirements had not yet been met.

At trial, the Perezes argued that some of the documents offered by Noffke
were not medical records because they were "letters" from doctors, implying that because
the records did not take the form of traditional medical charts, they could not be
admissible because they were hearsay. But in Dobos v. Ingersoll, we recognized that
"medical records, including doctors' chart notes, opinions, and diagnoses, fall squarely
within the business records exception to the hearsay rule."11 Evidence of the Perezes'
medical treatment and diagnosis, even in the form of a doctor's letter to the Social
Security Disability Determination Unit, could be admissible under our holding in Dobos,
provided litigants establish that "it was the regular practice" of the doctor to prepare and
send evaluation reports to the unit.12

A review of the parties' agreement reveals that Noffke's reliance on the
pretrial stipulation was appropriate. The foundation requirements for the business
records exception to the hearsay rule13 are as follows: first, the records must be of a
"regularly conducted business activity"; second, the record must "be regularly kept";
third, the source of information "must be a person who has personal knowledge"; fourth,
the information must have been "recorded contemporaneously with the event or
occurrence"; and fifth, "foundation testimony by the custodian of the record" must be
asked the following:

Does everybody agree we don't need - that the foundation
is established but that objections as to relevance and other
things are not established but that nobody needs to produce
custodians of medical records to go through the drill of doing
that?

The trial court expressed concern that records obtained from the Social
Security Administration do not qualify as "medical records" within the business records
exception to the hearsay rule. But a business record can come from any business,
including a doctor's office, a hospital, or the Social Security Administration. We held
in Liimatta v. Vest that while communication between medical doctors and the Social
Security Disability Determination Unit is not a "medical record" of the type "often
admitted under the business records exception," a record of such communication can be
admitted as a business record when parties "establish that it was the regular practice of
[the doctor] to prepare and send evaluation reports to the Social Security Disability
Determination Unit."17 Noffke reasonably relied upon the stipulation to conclude that
she was not required to lay such a foundation. The stipulation fairly indicated that if the
Perezes wanted to exclude the records, they would have to rely on some non-hearsay
basis to do so.

The trial court still must determine the relevance of the documents, as well
as whether they will be cumulative or confusing to the jury.18 The Perezes expressly
reserved their objections on these other grounds. But because medical and Social
Security records are admissible under the business records exception to the hearsay rule,
and the parties stipulated to the foundation of the records, the court should have admitted
the records, subject to any relevance objections, Alaska Rule of Evidence 403 balancing,
and potential redactions to ensure that the records would not be confusing to the jury.

Even though it was error to exclude the exhibits, Noffke must still show that
the error was harmful or prejudicial.19 The test for determining whether an error was
harmless is "whether on the whole record the error would have had a substantial
influence on the verdict of a jury of reasonable laymen."20 After oral argument on
appeal, the parties were asked to submit additional briefing on the issue of harmless error.
One of Noffke's defense theories at trial focused on the Perezes' preexisting medical
conditions. Because this defense was central to her case and because inclusion of the
medical records could have affected the jury's damages award, we conclude that the
exclusion of Noffke's proposed exhibits was prejudicial error.

Jose Perez testified that in 1991 or 1992 he hurt his back at work picking
up trash. He stated that the back injury was a disc injury but indicated that it no longer
caused him problems. Jose further testified that he was on Social Security disability
because of his previous back injury. In describing the treatment regime for that injury,
Jose testified that he was sent to the YMCA "to do the treadmill and the bicycle . . . for
about 15 sessions."

Noffke alleges that Jose's testimony at trial differed significantly from what
was indicated in his medical records. The Social Security records show that the injury
to Perez's back actually occurred in October 1994. The medical records reveal that Jose
Perez saw five different doctors for treatment after the initial injury to his back and
before the car accident. In Dr. Levine's report a year after the back injury, he notes that
Jose reported that he was experiencing pain at a level of seven to eight out of ten. Jose
also received two epidural steroid injections for the back injury, with no effect. The
doctor's evaluation also states that the pain had a "nonphysiologic nature" and there was
possible "somatic overlay" in the pain.

The excluded records relating to Jose Perez's preexisting condition could
have affected the jury's verdict. The difference between Jose Perez's testimony about
his prior injury and what the exhibits showed regarding his injury could have affected
Jose's credibility. Additionally, the information in the exhibits could be read as
indicating that Jose's injuries and treatment were much more extensive than revealed in
Jose's testimony. Given that Jose's damages are affected by how much treatment he
would need to return him to his pre-accident state, the exhibits are important evidence
of Jose's pre-accident state and therefore could have changed the verdict of a reasonable
juror.21

Following the trial court's rulings excluding evidence of the Perezes'
preexisting medical conditions, Noffke proposed to the court a way to accommodate the
Perezes' concerns about foundation: she requested a one-day continuance to call the
records custodians to establish foundation. The court denied this request. We find that
the trial court's ruling that Noffke could not have a one-day continuance to call the
records custodians was error. Any doubts about the authenticity of the records should
have been resolved either through the pretrial stipulation or by allowing Noffke to
subpoena the relevant custodians of records. Given the confusion surrounding the
pretrial stipulation and the relevance of the Perezes' preexisting medical conditions to
the question of damages, it was prejudicial error for the court to deny Noffke the
opportunity to call in records custodians to lay the foundation for the admissibility of the
exhibits.

B. The Superior Court Did Not Abuse Its Discretion by Requiring
Noffke's Expert To Produce Tax Returns Before Allowing the Expert

To Testify.

Noffke's expert, Dr. Richard Peterson, performed a review of Jose and
Neyda's medical records. In discovery, the Perezes served Noffke with a request for
production, asking for Dr. Peterson's income from the company he worked for, The
Independent Medical Evaluators (TIME), for the years 2002-2005. The request sought

Dr. Peterson's tax returns, as well as the tax returns for TIME for the same time period.
The Perezes originally filed an expedited motion to quash the videotaped deposition of
Dr. Peterson until Noffke complied with their request for production of his tax returns.

The trial court noted that it had compelled experts' tax returns relating to income earned
as expert witnesses in similar cases but that TIME's tax returns would not ordinarily be
required unless Dr. Peterson was also a partner or owner of TIME. Noffke opposed the
motion, arguing that requiring defense experts to produce their tax returns would have
a chilling effect on experts, leaving fewer experts willing to testify. Noffke also argued
that evidence of bias could be presented without requiring the expert to produce his tax
returns.

The trial court ruled that the Perezes' request for production of the tax
returns of both TIME and Dr. Peterson was proper and that the Perezes were entitled to
the information. The trial court disagreed that requiring such tax information would chill
the ability of parties to obtain expert witnesses and found that the tax returns would be
relevant to show potential bias. The trial court then granted the Perezes' motion to
postpone the deposition of Dr. Peterson until the requested information had been
provided. The Perezes were also awarded $900 in attorney's fees as a sanction for
Noffke's failure to provide the discovery. Noffke then moved for reconsideration of the
sanction. In denying the motion, the court noted that the $900 sanction was based on the
time the Perezes' attorney reportedly spent on the motion practice and the relative
reasonableness of the parties' positions.

Dr. Peterson and TIME filed a motion to intervene in order to obtain a
protective order for their financial records. Dr. Peterson and TIME expressed their
willingness to produce the records if the court issued a protective order limiting the use
of the information to this case and keeping the information confidential. The trial court
directed the parties, TIME, and Dr. Peterson to enter into a confidentiality agreement
regarding the tax records. Noffke then indicated in a status report that she would not
produce the tax returns of TIME and Dr. Peterson.

The issue came up again at the pretrial conference. The trial court offered
the parties a continuance of the trial date, scheduled to start in late November 2005, in
order to allow Dr. Peterson to produce the records and be deposed in January. But
Noffke reaffirmed that she would not comply with the discovery order. The trial court
indicated that Dr. Peterson would not be permitted to testify without first providing the
required discovery including his tax records:

THE COURT: Excuse me, Mr. Waggoner. Let's get that
record real, real clear about this. I did not strike your expert
witness. You indicated that you would not comply with my
orders in this court and you were not going to have the
witness testify under those circumstances.

MR. WAGGONER: Right.

THE COURT: That was what the indication was and I offered
you a continuance if you wanted to have your expert comply
with my order to get the testimony of your expert when he
next came through town and could be deposed so that he
could testify in this trial. That opportunity was always
available to you, and so you're the one who made the
strategic decision for reasons that you chose that you weren't
going to comply with that order.

MR. WAGGONER: Right. I agree with that. You've stated
it right. I - it's my view that your order is improper and
that's why we wouldn't comply with it and the effect of that
was that my expert witness was stricken.

Noffke argues that the trial court erred in ordering Dr. Peterson and TIME
to produce their tax returns before allowing Dr. Peterson to testify. Noffke also objects
to the $900 discovery violation fine.

In general, our rules favor "a system of liberal pretrial discovery."22 Alaska
Civil Rule 26 provides that "[p]arties may obtain discovery regarding any matter[] not
privileged which is relevant to the subject matter involved in the pending action. . . ."
Income tax returns are not privileged from discovery under Alaska statute or case law.23
Here, the trial court determined that the tax returns were relevant to show potential bias
on the part of defense expert Dr. Peterson. As the trial court noted, while an expert
witness might not normally be required to turn over their financial information, there may
be "a plausible argument that the witness generates such a significant portion of his or
her income from a particular side or particular attorney that the expert's impartiality can
reasonably be questioned." In such cases, the trial court reasoned that the tax returns are
relevant and thus discoverable under Rule 26.

But where the matters at issue in a discovery ruling are potentially protected
by the right to privacy, merely showing that the matter is relevant and not protected by
a privilege does not necessarily guarantee that the matter is discoverable. Trial courts
must also balance the plaintiff's "right to discovery . . . with the . . . [expert's] right of
privacy."24 The Alaska Constitution provides strong protections for matters in which
individuals have a subjective expectation of privacy "that society is prepared to recognize
as reasonable."25 Dr. Peterson has argued that he has a right to privacy in his tax returns,
and we assume that his expectation is one society would recognize as reasonable.

In DeNardo v. ABC Inc. RVs Motorhomes, we held that parties' income tax
returns are sometimes discoverable.26 We explained that "[t]he right to privacy is not
absolute," and that "a party who brings a lawsuit [may be required] to reveal information
that is relevant to his or her claims, even though the information may otherwise be
private."27 Expert witnesses are not always required to disclose their income tax returns,
as they may not always be relevant.28 But as Judge Rindner pointed out, the expert
witness in this case was "not [a] treating physician[] brought fortuitously into this
litigation but . . . a business offering its services with the full understanding that litigation
is ongoing." The trial court determined that the income tax returns were relevant and that
production of the returns would help clarify any stake the witness might have in the
outcome of the case.

In Jones v. Jennings, we were faced with a request for production of police
officers' personnel files.29 Recognizing that the officers had an expectation of privacy
in their personnel files, we adopted the following test:

(1) does the party seeking to come within the protection of
the right to confidentiality have a legitimate
expectation that the materials or information will not
be disclosed?

(2) is disclosure nonetheless required to serve a
compelling state interest?

(3) if so, will the necessary disclosure occur in that
manner which is least intrusive with respect to the
right to confidentiality?[30]

We applied this test to the request for production of the officers' personnel files and
concluded that the officers' privacy interests were outweighed by the need to "insure that
police behavior conforms to the code of conduct required of a democratic society."31 We
upheld the trial court's orders because they occurred in the least intrusive manner
possible: following in camera review and accompanied by an order that family names,
addresses, and personal financial information be redacted prior to disclosure.32
In this case, Judge Rindner took into account the concerns we articulated
in Jones in determining whether to order production of the income tax returns. He
evaluated the potential evidentiary utility of allowing discovery of the tax returns and
determined that they were relevant to show potential bias. He balanced this utility
against the burden on Dr. Peterson and TIME and the potential "chilling" effect
disclosure would have on expert witnesses and their willingness to participate in future
litigation. Ultimately, Judge Rindner found that the Perezes were entitled to discovery
of the tax returns in order to "show bias on [the] part of the expert." Rather than ordering
the wholesale disclosure of the expert's returns, however, Judge Rindner ordered that
disclosure occur under the protection of a confidentiality order.33 Because Judge
Rindner's analysis reflects the balancing in the Jones test, we hold that his ruling
allowing disclosure of the tax records was not an abuse of his discretion.

Noffke argues that the trial court's ruling was inconsistent with our holding
in Marron v. Stomstrad.34 [At. Br. 14] In Marron, two expert witnesses refused to
disclose their tax returns at their depositions.35 In denying Marron's pretrial motion to
compel disclosure of the tax returns, the superior court found that while revealing
opposing witness bias was important, the plaintiff's right to discovery had to be balanced
against the witnesses' right to privacy.36 In affirming the superior court's ruling, we
noted that Alaska Civil Rule 26(b)(2)(i) and (iii) allow a court to limit discovery where
the information is obtainable from "some other source that is more convenient, less
burdensome, or less expensive," or if "the burden or expense of the proposed discovery
outweighs its likely benefit."37 We concluded that "[b]ecause Marron elicited the
information that she sought - that the experts worked primarily for defendants - the
superior court did not abuse its discretion in not allowing Marron to discover the
witnesses' tax records."38

But the posture of this case differs from that in Marron in two ways: first,
while in Marron we affirmed the trial court's determination that disclosure of the tax
returns was unnecessary in light of other evidence of bias, here, no other evidence of bias
was on the record at the time of the trial court's ruling. Second, in Marron the experts
refused to produce their tax records, whereas here, Dr. Peterson and TIME agreed to
produce their tax returns subject to entry of a protective order. We find that it was not
an abuse of discretion to order the production of the tax returns.
Noffke also argues that the $900 sanction the trial court imposed was too
large, especially when compared to the $150 sanction against the Perezes for their failure
to turn over certain Social Security and employment records. In its order denying
Noffke's motion to reconsider the sanction, the trial court ruled that the fine was based
on the amount of time the Perezes' attorney indicated she spent on the motion and "the
reasonableness (or lack thereof) of the parties' positions." This decision was within the
discretion of the court.39

C. It Was Error To Grant a Directed Verdict on Comparative Negligence
to the Perezes.

At trial, after Noffke had called all witnesses who would testify to the
comparative fault of the parties, the Perezes moved for a directed verdict on Jose's
comparative negligence, alleging that Noffke had presented no evidence that Jose had
been at fault in the accident. After hearing oral arguments from both parties, the court
granted the directed verdict motion, noting that there had been no evidence presented that
Jose had been doing anything inappropriate at the time of the accident and stating that
it did not recall any testimony that both parties were at fault in the accident. Later that
day, Noffke filed a supplemental memorandum pointing to her own testimony that both
parties were at fault. Noffke also included in her memorandum a proposed jury
instruction that driving at or below the posted speed limit does not automatically negate
negligence. Noffke argued that based on the road conditions - including the road
construction and blocked lane ahead - even if Jose was traveling below the speed limit,
he was still traveling at a faster speed than would be considered reasonable. After
reviewing this memorandum, the trial court reiterated that there was "no evidence
whatsoever" that Jose had done anything wrong to contribute to the accident and
concluded that there was no evidence of comparative negligence to support submission
of the issue to the jury.

Noffke now points to her testimony on direct examination that she thought
both parties were responsible for the accident. The Perezes respond that Noffke's
testimony that "both of us" were at fault for the wreck is "oblique and speculative" and
is insufficient to defeat a motion for a directed verdict. The Perezes also note that all the
evidence was that Jose was traveling at a lawful and reasonable speed.
We review the trial court's ruling by considering "the evidence in its
strongest light most favorable to the non-moving party."40 We apply "an objective test
in determining whether or not fairminded men in the exercise of reasonable judgment
could differ."41 If there is room for diversity of opinion among reasonable people, then
the question is one for the jury. Generally, questions of negligence are left to the jury to
decide.42

Here, the question is whether a jury could have found that Jose breached his
duty to drive with proper regard for the safety of himself and others in light of the road
43 See Ferrell v. Baxter, 484 P.2d 250, 265 (Alaska 1971) ("[I]f a reasonably
prudent man would take precautions in addition to those statutorily required, the court
may . . . find defendant negligent for failing to do so."); Meyst v. E. Fifth Ave. Serv., Inc.,
401 P.2d 430, 435-36 (Alaska 1965) (finding no error in the trial court's comparative
work, road conditions, and the speed at which cars in the left-hand lane were driving. At
trial, a number of witnesses testified about the speed at which Jose was traveling and the
road conditions and construction on Lake Otis Parkway on the day of the accident.
Officer Roberts, the officer who responded to the accident, testified that the speed limit
on Lake Otis was forty-five miles per hour and that Jose was going about thirty-five
miles per hour at the time of the accident. But six days after the accident, Neyda Perez
told a doctor that her husband was going forty miles per hour at the time of the accident.
Officer Roberts also testified that the accident took place in a construction zone and
added that the road conditions were "wet and it had been raining or was raining." Officer
Roberts also indicated that road work signs were visible at the scene of the accident,
alerting drivers to the changed road conditions ahead.

Taking the evidence in the light most favorable to Noffke, the record could
support a finding that the right lane ahead of where the accident occurred was blocked
due to construction, that the road was wet, that the left lane of traffic had slowed to a
crawl, and that Jose was traveling quickly in the empty right-hand lane past the slowmoving
cars in the left-hand lane. Sufficient evidence was presented for a jury to
conclude that Jose was partially responsible for the crash because he was traveling at a
higher speed than a reasonable and prudent person would under the same circumstances.
Although the Perezes argue that because Jose was traveling below the
posted speed limit, he could not be found negligent, this position is not supported by our
case law.43 While failure to adhere to a posted speed limit might be negligence per se,
the opposite is not necessarily true, and adherence to the speed limit does not guarantee
a finding that a driver was not negligent.44

In light of the evidence presented, there was enough for "reasonable minds
to differ,"45 and therefore the issue of comparative negligence should have been
presented to the jury.

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http://www.state.ak.us/courts/ops/sp-6216.pdf