Jessica M. Karmasek Feb. 5, 2013, 5:00pm

ANCHORAGE, Alaska (Legal Newsline) -- The Alaska Supreme Court last week upheld a jury verdict in favor of a landlord who was sued by a tenant for failure to maintain a set of wooden stairs outside of a second-floor apartment.

The tenant and plaintiff, Elizabeth Heynen, fell when one of the outside stairs broke. She sustained a serious back injury because of the fall.

Heynen then sued her landlord, Julene Fairbanks, alleging that her fall was caused by Fairbanks' negligent failure to inspect and maintain the staircase.

Before trial, Heynen 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 Fairbanks from misstating the respective duties of landlords and tenants.

The First Judicial District Superior Court in Juneau denied the motions.

Also, at the close of evidence, Heynen moved for a directed verdict on her landlord's comparative negligence defense and Fairbanks' attempt to allocate fault to a deceased party -- the contractor who built the staircase, Kurt Kosters.

Heynen also moved to preclude her landlord from making arguments based on medical records admitted at trial.

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

A final judgment was entered in favor of Fairbanks. She was awarded about $7,700 in costs and $9,770 in attorney's fees.

Heynen appealed to the state high court -- in particular, 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.

Heynen, on appeal, also argued that the lower court erred in allowing Fairbanks to attempt to allocate fault to Kosters and that the jury's finding that the landlord was not negligent was contrary to the evidence.

In its 20-page opinion filed Friday, the Supreme Court upheld the lower court's rulings, saying the court did not err, because the jury's verdict was not contrary to the evidence, and the medical records issue is moot.

"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," Chief Justice Walter Carpeneti wrote for the Court.

"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 reasonably have been expected to find."

He continued, "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."

Carpeneti noted that 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, the evidence was such that a reasonable juror could have found that Heynen was comparatively negligent," the chief justice wrote.

From Legal Newsline: Reach Jessica Karmasek by email at

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