       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@akcourts.us.



                THE SUPREME COURT OF THE STATE OF ALASKA

JUAN MARTINEZ-MORALES,                          )
                                                )        Supreme Court No. S-15805
                       Appellant,               )
                                                )        Superior Court No. 3AN-13-09825 CI
       v.                                       )
                                                )        OPINION
RONDA MARTENS,                                  )
                                                )        No. 7083 – February 19, 2016
                       Appellee.                )
                                                )

               Appeal from the Superior Court of the State of Alaska, Third
               Judicial District, Anchorage, Patrick J. McKay, Judge.

               Appearances: Charles W. Coe, Law Office of Charles W.
               Coe, Anchorage, for Appellant. Gregory R. Henrikson and
               Laura Eakes, Walker & Eakes, Anchorage, for Appellee.

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

               PER CURIAM.

I.     INTRODUCTION
               This appeal arises from an accident in a parking lot in which a vehicle
driven by Ronda Martens struck pedestrian Juan Martinez-Morales as he crossed the lot.
A jury found that Martens was not negligent, and the superior court entered final
judgment in her favor, awarding her costs and attorney’s fees. Martinez-Morales
appeals, arguing that the superior court erred by giving incorrect jury instructions on
causation and damages, failing to give a multiple-cause jury instruction, declining to give
Martinez-Morales’s proposed jury instructions on the standard of care, and improperly
admitting testimony from Martens’s accident reconstruction expert. We conclude that
Martinez-Morales’s arguments relating to jury instructions on causation and damages are
moot and that the superior court did not err in its jury instructions on negligence or in its
admission of expert testimony. We therefore affirm the superior court in all respects.
II.    FACTS AND PROCEEDINGS
              In June 2012 Juan Martinez-Morales was crossing a parking lot on foot
after exiting a restaurant when he was struck by a car driven by Ronda Martens. At trial
the parties disputed the facts of the accident. Martinez-Morales claimed he “walk[ed]
normally” into the parking lot and past a truck, looked both ways before stepping into
the “main path” of the parking lot, and was struck by the front of Martens’s vehicle.
Martens claimed that she turned into the parking lot, Martinez-Morales “ran right in
front” of her, and she stopped immediately.
              Martinez-Morales sued Martens for negligence, alleging that Martens was
driving too fast in what he considered the wrong lane of the parking lot, failed to warn
Martinez-Morales before hitting him, and failed to yield the right of way to a pedestrian.
He claimed that Martens’s alleged negligence caused him to suffer bodily injury and
damages in the form of medical expenses, physical and emotional pain and suffering, lost
wages, and loss of the full use of his body and enjoyment of life.
              The case proceeded to trial before Superior Court Judge Patrick J. McKay
in November 2014. The jury found that Martens was not negligent, and the court entered
final judgment in her favor in December 2014, awarding her costs under Alaska Civil
Rule 79 and attorney’s fees under Alaska Civil Rule 82. Martinez-Morales appeals and
requests that we reverse and remand for a new trial.




                                            -2-                                        7083

III.	 STANDARDS OF REVIEW
              “We apply our independent judgment in determining mootness because, as
a matter of judicial policy, mootness is a question of law.”1 “The decision whether to
include a particular instruction rests with the discretion of the trial court.”2 “We
generally review a trial court’s decision to admit expert testimony for abuse of discretion
and will reverse ‘only when left with the definite and firm conviction that the trial court
erred in its decision.’ ”3
IV.	   DISCUSSION
       A.	    The Issues Of Jury Instructions On Causation And Damages Are
              Moot.
              Most of Martinez-Morales’s appeal comprises objections to jury
instructions given on causation and damages.4 Martinez-Morales argues that the jury
instructions on causation were “not completely based on Alaska case law” and that they
“put an enhanced burden of proof on plaintiffs” in civil personal injury cases. He
contends that the instructions misstated the law by providing an “incorrect definition of



       1
             Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532, 534 (Alaska 2005)
(citing Ulmer v. Alaska Rest. & Beverage Ass’n, 33 P.3d 773, 776 (Alaska 2001)).
       2
             Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1150 n.21 (Alaska
1999) (quoting Shane v. Rhines, 672 P.2d 895, 901 (Alaska 1983)).
       3	
             Thompson v. Cooper, 290 P.3d 393, 398 (Alaska 2012) (quoting Jackson
v. Am. Equity Ins. Co., 90 P.3d 136, 145 (Alaska 2004)).
       4
              The instructions Martinez-Morales challenges are all based on Alaska Civil
Pattern Jury Instructions (Pattern Instructions): 03.01 (listing the elements required to
recover under a theory of negligence), 03.07 (advising jurors how to determine whether
negligence was a substantial factor in causing the harm), 20.06 (instructing jurors on
damages for non-economic losses), and 20.18A (instructing jurors not to compensate for
harm caused by a failure to mitigate), http://courts.alaska.gov/rules/juryins.htm.

                                            -3-	                                     7083

substantial factor”5 that included the limitation that “negligence cannot be remote or
trivial.” At trial Martinez-Morales requested that in place of the jury instruction defining
“substantial factor,” the court give an alternate instruction, which had been used in the
past before being replaced by the Civil Pattern Jury Instructions Committee. The
proposed language would have instructed jurors that the test for causation is whether “the
act or failure to act was so important in bringing about the harm that a reasonable person
would regard it as a cause and attach responsibility to it.” The court declined to use
Martinez-Morales’s proposed instruction.
              Martinez-Morales also argues that the repetition of the “substantial factor”
requirement “multiple times” throughout the jury instructions and on the special verdict
form created a higher burden of proof for the plaintiff than is required in other civil
cases. Relatedly, he appears to challenge the foundational requirement that negligence
must be a substantial factor in causing harm, but his brief to this court on that point is
inconsistent.6 Finally, Martinez-Morales argues that the superior court erred by failing
to give a multiple-causation instruction as he requested.
              Martinez-Morales also challenges the superior court’s decision not to use
his proposed damages instruction, which informed jurors about the award of damages
for non-economic losses. The proposed language would have instructed jurors: “If


       5
             The court instructed that to find that a plaintiff may recover under a theory
of negligence, the jury must find that the defendant’s negligence was a substantial factor
in causing the plaintiff’s harm.
       6
              While Martinez-Morales clearly objects to the use of the “remote or trivial”
language, his general position on the substantial factor test itself is inconsistent. At times
it seems he is only challenging the inclusion of the “remote or trivial” language in the
definition of substantial factor, but elsewhere he argues that “[f]orcing the jury to apply
a ‘substantial factor test’ to determine harm should not be part of the burden of proof”
in determining whether a plaintiff can recover under a theory of negligence.

                                             -4-                                        7083

Mr. Martinez-Morales received medical care as a result of being struck on June 28, 2012,
you must award a fair amount for the injuries which are a result of what occurred.”
Martinez-Morales also objects to the mitigation instruction that advised jurors not to
award damages for any losses that could have been avoided with reasonable efforts and
without undue risk.
               We do not need to decide whether the superior court correctly instructed
the jury on causation or damages because these issues are moot. An issue “is moot if it
is no longer a present, live controversy, and the party bringing the action would not be
entitled to relief, even if it prevails.”7 In this case, the first question on the special verdict
form asked the jury, “Was Mrs. Martens negligent? Answer ‘yes’ or ‘no.’ ” The jury
answered, “No.” The superior court then instructed jurors that if their answer to the first
question was “no,” they were finished with their deliberations and were not to answer
any subsequent questions on the special verdict form. The second question, which the
jury never reached, asked the jury to determine whether “Mrs. Martens’[s] negligence
[was] a substantial factor in causing harm to Mr. Martinez-Morales.”
               The only instructions the jury needed to determine whether Martens was
negligent were the instruction defining negligence as “the failure to use reasonable care
to prevent harm to oneself or others,” and the instructions setting the standard for
reasonable care for pedestrians and drivers. Because the jury determined that Martens
had not been negligent, it never reached any questions of causation or damages that
would have required them to apply the instructions that Martinez-Morales challenges.
Because these issues are moot, we affirm the superior court’s instructions and its decision
not to include Martinez-Morales’s proposed language.

       7
             Alaska Fur Gallery v. First Nat’l Bank Alaska, 345 P.3d 76, 96-97 (Alaska
2015) (quoting Fairbanks Fire Fighters Ass’n, Local 1324 v. City of Fairbanks, 48 P.3d
1165, 1167 (Alaska 2002)).

                                               -5-                                          7083

       B.	      The Superior Court Did Not Err By Denying Martinez-Morales’s
                Proposed Instructions On The Standard Of Care.
                While Martinez-Morales’s challenges to the jury instructions on causation
and damages are moot, his objections to the instructions establishing required standards
of care for each party are properly before us. The court instructed the jury that a driver
is negligent if he or she “does not use reasonable care: 1) to keep a lookout for other
travelers or obstacles within or approaching the vehicle’s line of travel, and 2) to control
the speed and movement of the vehicle,” and a pedestrian is negligent if “the pedestrian
does not exercise reasonable care.”8 Martinez-Morales submitted two proposed jury
instructions that he argues would have provided “additional clarification” of these
instructions.
                Both of Martinez-Morales’s proposed instructions were based on Pattern
Instruction 03.04B, which is given when the jury is to consider violation of a particular
statute, regulation, or ordinance as evidence of negligence.9 The first instruction cited
13 Alaska Administrative Code (AAC) 02.545(b), which provides that “[e]very driver
of a vehicle shall exercise care to avoid colliding with a pedestrian, an animal or another
vehicle.” The second proposed instruction cited 13 AAC 02.050(a), which provides that


       8
              These instructions are based on Pattern Instructions 05.01 and 05.03,
defining the general duties of care for drivers and pedestrians respectively.
       9
              Pattern Instruction 03.04B, Directions for Use, http://courts.alaska.gov/rules
/juryins.htm. Martinez-Morales argues that the superior court denied his “negligence per
se instruction,” but our review of the record shows that he did not request a negligence
per se instruction. The instruction for negligence per se is Pattern Instruction 03.04A,
not 03.04B, which may be used when the violation of a statute provides some evidence
of negligence. Further, he claims that at trial “the court determined that these regulations
do not constitute negligence per se, only evidence of negligence.” Rather, the superior
court declined to give either proposed instruction because it found that the regulations
did not apply in parking lots.

                                            -6-	                                      7083

“[u]pon a road way of sufficient width, a vehicle must be driven upon the right half of
the road way.” The superior court declined to include either proposed instruction
because the court “simply [did not] think that the ordinances . . . apply to a parking lot
situation” and therefore any purported violation of the regulation could not constitute
evidence of negligence.10 With regard to the first proposed instruction, the court also
determined that concerns about drivers not watching for pedestrians were sufficiently
“covered under what [the court] ha[d] already determined to be the motor vehicle duties”
under the instruction establishing the standard of care for drivers.
             The superior court did not abuse its discretion by failing to give
Martinez-Morales’s proposed evidence-of-negligence instructions.          Regardless of
whether 13 AAC 02.545(b) applies to parking lots, an instruction based on that
regulation would have been redundant. The instructions given already advised jurors
that they should find negligence if they determined that Martens had failed to keep a
lookout for people or obstacles or had not been in control of the speed or movement of
her vehicle. The proposed instruction based on 13 AAC 02.050(a) was also properly
declined because such traffic regulations seemingly “apply exclusively to the . . .
movement or operation of a vehicle . . . upon a highway or a state-operated and
maintained ferry facility except where a limited application or a different place is
specifically referred to in a section.”11 Because no relevant exception exists in the




      10
               At trial, the court noted that while it would not give the requested
instruction, it would “overrule any objection to [Martinez-Morales’s] argument that
[Martens] should have been driving closer to the right-hand side.” This assurance should
have helped alleviate Martinez-Morales’s concerns that the location of Martens’s car
would not be considered by the jury.
      11
             13 AAC 02.560 (emphasis added).

                                           -7-                                      7083

regulation requiring drivers to drive on the right-hand side of the road, the regulation
does not apply in parking lots.
              We affirm the superior court’s decision not to include either of
Martinez-Morales’s proposed jury instructions on the standard of care.
       C.	    The Superior Court Did Not Err By Admitting Testimony Of The
              Accident Reconstruction Expert.
              Finally, Martinez-Morales challenges the superior court’s admission of
testimony from one of Martens’s witnesses, Bob Butcher, an accident reconstruction
expert. Martinez-Morales argues that Butcher was unqualified to testify as an expert
because he had not taken classes in accident reconstruction in the past 15 years, had not
researched or published anything in the field, and was not certified by the relevant
national certification group. Martens counters that Butcher had extensive experience in
law enforcement and accident reconstruction. The superior court found that Butcher was
qualified because “[t]here’s no requirement under the rule that [Butcher] actually be
certified” and he only “has [to have] more knowledge than the jury, and [be able to]
assist the jury.”
              “Alaska recognizes two general categories of expert testimony: (1) expert
opinion based on technical or scientific research and testing; and (2) expert opinion
based on practical experience in the relevant field.”12 Testimony based on scientific
testimony is subject to the higher standard set out by the U.S. Supreme Court’s decision
in Daubert v. Merrell Dow Pharmaceuticals, Inc.,13 which we adopted in State v. Coon.14


       12
             Thompson v. Cooper, 290 P.3d 393, 399 (Alaska 2012) (citing Marsingill
v. O’Malley, 128 P.3d 151, 159 (Alaska 2006)).
       13
              509 U.S. 579 (1993). Daubert established the test for admissibility of
scientific expert testimony. As described by this court, the Daubert test considers:
                                                                          (continued...)

                                           -8-	                                    7083

By contrast, experience-based testimony is admissible “when the expert witness has
substantial experience in the relevant field and the testimony might help the jury.”15 In
Marron v. Stromstad we held that the Daubert requirements do not apply to accident
reconstruction experts because such testimony “is clearly within the ‘jury’s everyday
world experience and ordinary mode of reasoning’ ” and is “the sort of experience-based
testimony the admission of which is encouraged by our rules of evidence.”16 In affirming
the superior court’s admission of testimony, we observed that “[a]ccident
reconstructionists . . . have previously been allowed to testify in similar cases,” and that
it is “self-evident” that “the testimony of such experts assists the trier of fact.”17 Like the



       13
            (...continued)
                  (1) whether the proffered scientific theory or technique can
                  be (and has been) empirically tested (i.e., whether the
                  scientific method is falsifiable and refutable); (2) whether the
                  theory or technique has been subject to peer review and
                  publication; (3) whether the known or potential error rate of
                  the theory or technique is acceptable, and whether the
                  existence and maintenance of standards controls the
                  technique’s operation; and . . . (4) whether the theory or
                  technique has attained general acceptance.
State v. Coon, 974 P.2d 386, 395 (Alaska 1999) (citing Daubert, 509 U.S. at 593-94).
       14
                 974 P.3d at 395.
       15
                 Thompson, 290 P.3d at 399 (quoting Marsingill, 128 P.3d at 160).
       16
              123 P.3d 992, 1007 (Alaska 2005). In this respect, we declined to follow
the U.S. Supreme Court’s decision in Kumho Tire v. Carmichael, 526 U.S. 137 (1999).
In Kumho the Court expanded the Daubert requirements to cover all expert testimony,
but we “never adopted Kumho Tire’s extension of Daubert” and in Marron we
“explicitly decline[d] to do so.” Marron, 123 P.3d at 1007.
       17
                 Marron, 123 P.3d at 1008-09.

                                                -9-                                      7083

accident reconstructionist in Marron, Butcher was similarly experienced and has testified
in many similar cases.
              Martinez-Morales’s argument that Butcher was insufficiently trained or
qualified is also unconvincing. “There is no requirement that a witness possess a
particular license or academic degree in order to qualify as an expert.”18 “[T]he primary
criterion . . . is ‘whether the jury can receive appreciable help from [that witness].’ ”19
Butcher’s failure to attend courses or publish in the field does not disqualify him from
testifying as an expert witness. We affirm the superior court’s decision to permit Butcher
to testify.
V.     CONCLUSION
              For the reasons discussed above, we AFFIRM the superior court in all
respects.




       18
              Martha S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 268 P.3d 1066, 1077 (Alaska 2012) (alteration omitted) (quoting Handley v.
State, 615 P.2d 627, 630 (Alaska 1980)).
       19
              Marsingill, 128 P.3d at 159 (quoting Handley, 615 P.2d at 631).

                                           -10-                                      7083

