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Beck v. Dept. of Transportation (7/31/92), 837 P 2d 105
<![CDATA[
Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
IDA MARIE (PAVAO) BECK, )
Individually, and as Personal ) Supreme Court File No. S-4296
Representative of the Estate ) Superior Court File No.
of JERRIE BECK, ) 1PE-88-132 Civil
)
Appellant, )
)
v. ) O P I N I O N
)
STATE OF ALASKA, DEPARTMENT )
OF TRANSPORTATION AND PUBLIC )
FACILITIES, )
)
Appellee. )
______________________________) [No. 3871 - July 31, 1992]
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Petersburg, Thomas A. Jahnke, Judge.
Appearances: David V. George, Juneau,
and W. G. Ruddy, Ruddy, Bradley & Kolkhorst,
Juneau, for Appellant. Gregory W. Lessmeier
and Michael L. Lessmeier, Hughes, Thorsness,
Gantz, Powell & Brundin, Juneau, for
Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
MOORE, Justice.
Jerrie Beck was killed when the car she was driving
left the roadway along a stretch of road from which state highway
crews had been removing landslide debris over the previous ten
days. Acting both individually and as the personal
representative of Jerrie's estate, her mother, Ida Marie Beck,
sued the State. After trial and a jury verdict for the State,
Beck appeals.
I. FACTS AND PROCEEDINGS
On the evening of October 24, 1986, seventeen-year-old
Jerrie Beck drove along the Mitkof Highway near Petersburg with
four passengers. Near mile 6.2, her car left the roadway.
Jerrie and one passenger were killed. A short time before the
accident, the youths had obtained several bottles of wine
coolers. Jerrie had consumed some of the wine cooler beverage in
the minutes before the accident.
Ten days before the accident, landslides had covered
the roadway near mile 6.2 of the Mitkof Highway. Following the
landslide, crews from the Alaska State Department of
Transportation and Public Facilities (DOTPF) erected signs,
flashing lights and barricades at the site of the slide, and
proceeded to clear slide material from the roadway over the next
several days. Early on the day of the accident, DOTPF crews
"finished up" the slide cleanup and removed the signs and
barricades, but planned to give the area a final sweeping the
following day with a mechanical broom. A DOTPF maintenance
supervisor testified he knew that the work completed on October
24 left a "thin film" of debris which would have been
redistributed by traffic to partially cover the lines on the
roadway.
Ida Marie Beck sued the State of Alaska and DOTPF
(collectively, "State") both in her personal capacity and as a
representative of Jerrie's estate. The complaint alleged
negligent maintenance, repair, design and failure to adequately
warn of the dangerous condition of the roadway, and included
claims for the decedent's suffering, wrongful death, and
negligent infliction of emotional distress. On the State's
motion for partial summary judgment, the trial court dismissed
Beck's emotional distress claim and declared Jerrie Beck
negligent per se for violating 13 Alaska Administrative Code
02.545(a), which prohibits the consumption of alcoholic beverages
while driving.
Beck's theory at trial was that the rainsoaked slide
debris on the roadway contributed to the accident by obscuring
the centerline and foglines, thus depriving Jerrie Beck of
guidance. Beck also sought to prove that the slide debris caused
Jerrie to lose control of the vehicle. The State attributed the
accident to Jerrie Beck's execution of a "sharp overcorrection"
to the left after she steered the vehicle too far to the right.
The jury, by special verdict, found for the State, concluding
that the roadway was not in a dangerous condition at the time of
the accident. Judgment was subsequently entered for the State.
Beck appeals, citing a variety of errors, including the
denial of her challenge for cause of a juror, the admission of
accident reconstruction evidence, certain jury instructions, the
dismissal of her negligent infliction of emotional distress
claim, and the trial court's rulings on issues relating to the
correct measure of damages in wrongful death actions.
II. DISCUSSION
A. Negligent Infliction of Emotional Distress
Beck claims that the trial court erred in granting the
State's summary judgment motion dismissing her claim for
negligent infliction of emotional distress (NIED). We agree.
Summary judgment is appropriate where there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Alaska R. Civ. P. 56. A
resolution of the question of whether a plaintiff can assert a
claim for NIED is essentially an inquiry into whether the
defendant should reasonably foresee the injury to the plaintiff
and thus owes the plaintiff a duty of care. See Dillon v. Legg,
441 P.2d 912 (Cal. 1968). The existence and extent of a duty of
care are questions of law for the court to determine. Estate of
Breitenfeld v. Air-Tek, Inc., 755 P.2d 1099, 1102 (Alaska 1988);
Armstrong v. United States, 756 F.2d 1407, 1409 (9th Cir. 1985).
In Tommy's Elbow Room, Inc. v. Kavorkian, 727 P.2d 1038
(Alaska 1986), we adopted the guidelines set forth by the
California Supreme Court in Dillon v. Legg for determining
whether the injury to a plaintiff asserting a NIED claim was
"foreseeable"to the defendant, thus establishing a duty of care:
(1) Whether plaintiff was located near
the scene of the accident as contrasted with
one who was a distance away from it. (2)
Whether the shock resulted from a direct
emotional impact upon plaintiff from the
sensory and contemporaneous observance of the
accident as contrasted with learning of the
accident from others after its occurrence.
(3) Whether plaintiff and the victim were
closely related, as contrasted with an
absence of any relationship or the presence
of only a distant relationship.
727 P.2d at 1041 (citing Dillon, 441 P.2d at 1041). In Kavorkian
and subsequent cases we rejected the "rigid requirement of
sensory and contemporaneous observance of the accident" and
instead focused on "the reasonable foreseeability that the
plaintiff-witness would suffer emotional harm." Id. at 1043;
Mattingly v. Sheldon Jackson College, 743 P.2d 356, 365 (Alaska
1987); Croft v. Wicker, 737 P.2d 789, 791-92 (Alaska 1987). In
spite of our liberal interpretation of the Dillon guidelines,
"there remains a requirement that the shock result more or less
contemporaneously with the plaintiff's learning of the nature of
the victim's injury." Mattingly, 743 P.2d at 365-66.
The facts of the present case are intermediate between
Kavorkian and Mattingly.1 Here, Beck was at her home in
Petersburg, approximately six miles from the accident scene, when
she learned of the accident from friends. She and her friends
immediately drove to the accident scene, where rescue workers
prevented them from approaching the wrecked vehicle which still
contained her injured daughter. Beck and her friends then drove
to the hospital. Within minutes of their arrival, Jerrie was
brought into the hospital on a gurney and Beck saw her injured
daughter for the first time.
In both Kavorkian and Mattingly, we cited with approval
Ferriter v. Daniel O'Connell's Sons, Inc., 413 N.E.2d 690 (Mass.
1980), in which the Massachusetts Supreme Judicial Court allowed
a mother and her children to recover for emotional distress
resulting from the sight of their seriously injured husband-
father in a hospital after a work-related accident. 727 P.2d at
1042 n.4; 743 P.2d at 365. In Ferriter, the court stated that
[a] plaintiff who rushes onto the
accident scene and finds a loved one injured
has no greater entitlement to compensation
for that shock than a plaintiff who rushes
instead to the hospital. So long as the
shock follows closely on the heels of the
accident, the two types of injury are equally
foreseeable.
413 N.E.2d at 697. Where, as here, the plaintiff experiences
shock as the result of a sudden sensory observation of a loved
one's serious injuries during an uninterrupted flow of events
following "closely on the heels of the accident,"such emotional
injury is foreseeable and the plaintiff is entitled to assert a
claim for NIED. See also Masaki v. General Motors Corp., 780
P.2d 566 (Hawaii 1989) (though not present at the accident scene,
parents of a 28 year old mechanic, whose neck was broken when a
car inexplicably lurched backward, were allowed to recover for
NIED because they lived on the same island, witnessed the
consequences of the accident, and went immediately to the
hospital on learning of the accident and were told their son
would never walk).
The State urges us to restrict NIED claims by applying
the Dillon factors as strict requirements rather than guidelines,
the approach taken by the California Supreme Court in Thing v. La
Chusa, 771 P.2d 814 (Cal. 1989).2 We decline to adopt the Thing
approach. Rather, we believe that courts "should apply the
concepts of foreseeability and duty to negligent infliction of
emotional distress actions, with a view toward a policy favoring
reasonable limitations on liability." 771 P.2d at 844
(Broussard, J., dissenting).
We believe that both justice and the policy favoring
reasonable limitations on liability can be served with a less
restrictive approach than that taken by the Thing court. In
Thing, the majority distinguished between the emotional distress
which results from the observation of the injury-producing event
and that which results from learning of the injury or death, or
observing the pain and suffering, but not the cause of the
injury. 771 P.2d at 828. While recognizing the arbitrary nature
of this distinction, the court reasoned that the law should
provide a remedy for the former, but not the latter. Id. We
believe, however, that one who is thrust, either voluntarily or
involuntarily, into such dramatic events and who makes a sudden
sensory observation of the traumatic injuries of a close relative
in the immediate aftermath of the event which produced them is no
less entitled to assert a claim for his or her emotional injuries
than one who actually witnessed the event. By contrast, one who
learns of the injury or death of a loved one, or who observes the
pain and suffering or the injuries only after a considerable
period of time has elapsed since the accident, suffers a harm
which, while foreseeable, policy and reason dictate the law
should not regard as compensable.
Because Beck's emotional shock resulted from her
observation of her daughter's traumatic injuries during the
continuous flow of events in the immediate aftermath of the
accident, and because it cannot be said that she had time to
"steel herself"as did the plaintiff in Mattingly, we conclude
that her injury was foreseeable. Thus we conclude that the trial
court erred in dismissing Beck's NIED claim on the State's motion
for summary judgment.
B. Challenge for Cause of Juror Baker
Beck also contends the trial court erred when it denied
her challenge for cause of juror Sandra Baker. Beck argues that
Baker had personal knowledge of the facts of the case, that
statements by Baker revealed preconceived opinions about the
case, and that Baker failed to exhibit a willingness to set aside
her opinions and be guided solely by the evidence and the trial
court's instructions. The State argues that Baker's responses on
voir dire indicated a willingness to follow the trial court's
instructions. Alaska Civil Rule 47(c) allows a party
to challenge prospective jurors for cause and gives the trial
court the discretion to determine whether to grant or deny such
challenges.3 We will only interfere with the sound discretion of
the trial court to determine challenges of jurors for cause "in
exceptional circumstances and to prevent a miscarriage of
justice." Sirotiak v. H.C. Price Co., 758 P.2d 1271, 1275
(Alaska 1988) (quoting Mitchell v. Knight, 394 P.2d 892, 897
(Alaska 1964)). In Sirotiak, we declared that the record need
not "reflect _unequivocal and absolute_ impartiality" of
prospective jurors, but "[a]ll that is required of a prospective
juror is a good faith statement that he or she will be fair,
impartial, and follow instructions." 758 P.2d at 1277. As we
noted in Sirotiak, "we doubt the truly honest juror could state
unequivocally and absolutely that his or her biases will have no
effect on the verdict." The Sirotiak requirement, while no
absolute guarantee of impartiality and fairness, is the best
assurance available that a prospective juror who exhibits bias or
preconceived opinions is willing to make an honest and sincere
effort to set them aside to the extent possible in the
performance of his or her duty.
The record reveals that the minimal standard of
Sirotiak was not met here. Baker testified that she had personal
knowledge of the facts of the case and that she had formed an
opinion as to "what happened out there." On voir dire, Baker
admitted that she had visited the scene several days after the
accident and had formed the opinion that the accident resulted
from "inattention to the road"by an "[i]nexperienced driver"and
that she did not "think there was any fault." When asked by
counsel for the State whether she could set her opinions aside
and decide the case based on the evidence and the court's
instructions, Baker replied "I don't think I would change my
mind. . . . I don't see how the court could instruct me without
the court itself showing me that someone was to blame." Her
response to the question a second time was "I don't think I would
be willing to reward or punish anyone for the accident." When
asked if she would be able to apply the court's definition of
negligence to the evidence, Baker replied "Maybe." Further
questioning by the court failed to elicit a response
approximating the good faith statement of fairness and
impartiality required by Sirotiak.4 The court ultimately denied
Beck's challenge to Baker based on her ability to understand,
rather than her willingness to follow, the court's instructions.5
Because Baker did not state in good faith that she would be fair,
impartial and follow the court's instructions, and because she
exhibited a substantial inclination to be governed by her own
opinions rather than the evidence and the court's instructions,
the trial court abused its discretion in failing to excuse Baker.
See Blades v. DaFoe, 704 P.2d 317, 324-25 (Colo. 1985) (when,
based on a juror's statements during voir dire as a whole, there
is reason to believe a prospective juror is not indifferent, the
juror must be dismissed for cause).
The State argues that if the denial of the challenge
for cause was error, it was harmless because "[n]o prejudice
flowed from the denial of the challenge." In support of its
argument, the State cites Dalkovski v. Glad, 774 P.2d 202 (Alaska
1989), where we held that, although refusal to excuse a potential
juror with personal knowledge of the facts of a case was an abuse
of discretion, the error was harmless because the juror's
knowledge was unrelated to and did not substantially affect the
particular findings made by the jury which defeated plaintiff's
claim. Id. at 206-07. In the present case, however, the facts
of which juror Baker had personal knowledge, i.e., the condition
of the roadway, were the pivotal factual issues in the case.6
Thus the State's reliance on Dalkovski is misplaced.
In Dalkovski, we stated that "[a] juror with any
material knowledge of the facts in the case on trial should be
excused for cause unless it is beyond question that such juror
can try the case and return a verdict only on the evidence
introduced in the courtroom." 774 P.2d at 206 (quoting Jordan,
Jury Selection 5.15 at 83 (1980)). Here, the combination of
Baker's preconceived opinions and personal knowledge of the facts
of the case, as well as her reluctance to set aside these
opinions and base a decision on the evidence and the court's
instructions, are sufficient to cast considerable doubt on
whether Beck secured a fair and competent jury. Because it
cannot be said that the error did not substantially affect the
jury's verdict for the defendant, it was not harmless.
Therefore, judgment for the State must be reversed.
C. Admission of Experimental Evidence
As a basis to challenge Beck's theory as to the cause
of the accident, the State conducted an experiment in which slide
material was scooped from the side of the road at the accident
site, spread over the roadway, and scraped and swept as had been
done on the day of the accident. Terry Day, an accident
reconstructionist, test-drove a vehicle similar to the one
involved in the accident through the area. Day conducted skid
tests and measured road friction with an on-board performance
computer. He also tested Beck's theory that the material on the
roadway caused the vehicle to pull to the right. Photographs
were taken from the vehicle at rest at various positions along
the roadway to show visual clues which would be available to
guide a driver along the roadway under conditions similar to
those which existed at the time of the accident. The trial court
admitted the testimony and photographs over Beck's objection that
the conditions of the experiment were not substantially similar
to those existing at the time of the accident. Beck reasserts
this challenge on appeal.
Experimental evidence is admissible only if the
conditions of the experiment were substantially similar to the
conditions at the time of the event in issue. Love v. State, 457
P.2d 622, 627 (Alaska 1969). In Love, we outlined several
principles to guide the court in determining substantial
similarity. These include: 1) whether the dissimilarities are
likely to distort the results of the experiment to the degree
that the evidence is not relevant; 2) whether the dissimilarities
can be adjusted for or explained so that their effect on the
results can be understood by the jury; 3) the purpose of the
experiment and the degree to which the matter under experiment is
a subject of precise science; and 4) whether the experiment would
be considered valid by persons skilled or knowledgeable in the
field which the experiment concerns. 457 P.2d at 628. As with
all evidence, experimental evidence is also subject to exclusion
at the trial court's discretion if its prejudicial effect
outweighs its probative value. 457 P.2d at 627; Alaska R. Evid.
403.
We conclude that the trial court correctly applied the
Love standards and that the evidence supports its finding that
the conditions under which Day conducted the skid and pull tests
were substantially similar to those at the time of the accident.
Tests showed that the material spread on the roadway for the
experiment was the same as the material on the road at the time
of the accident. The same equipment was used to clear the
roadway on both occasions. The weather and moisture conditions
were the same or similar. The vehicles used in the experiment
were similar to the vehicle involved in the accident. The
dissimilarities cited by Beck were individually considered by
Day, who was able to adequately and clearly explain their
significance or lack thereof in evaluating the test results.
As we stated in Love, "[t]he rule of substantial
similarity of conditions does not require an identity of
conditions but only that degree of similarity which will insure
that the results of the experiment are probative." 457 P.2d at
627. Here, the conditions were sufficiently similar that the
results of the friction and pull tests clearly had probative
value and relevancy given Beck's theory of the cause of the
accident. When, as here, a party makes a satisfactory showing of
substantial similarity of the experimental conditions, an
opposing party is free to conduct cross examination, to present
evidence, and to make arguments challenging the significance,
accuracy and results of the tests. However, such evidence would
go to the weight rather than to the admissibility of the
experimental evidence.
Beck further challenges the admission of the
photographs from the recreation by arguing that their prejudicial
value outweighs their probative value and that the trial court
should have exercised its discretion under Alaska Rule of
Evidence 403 to exclude the photographs. We disagree. The trial
court did not abuse its discretion in concluding that the
probative value on the issue of visual guidance outweighed the
prejudicial value and that the evidence could be adequately
explained to, and understood by, the jury. The court, at Beck's
request, gave a cautionary instruction that these were not
photographs of the scene at the time of the accident and that
"extreme caution must be used . . . in evaluating these photos."
Beck argues for a strict rule of law which would
prohibit the admission of still photos to represent what the
human eye can see in dynamic situations. We decline to adopt
such a rule. We are aware of only one case in which a court
concluded that photographic evidence to depict what could be seen
by the human eye was improperly admitted, but the error was held
to be nonprejudicial. See Allemand v. Zip's Trucking Co., 552
So. 2d 1023, 1029 (La. App. 1989). Other cases hold that
subsequent photographic evidence of reconstructed events is
admissible as long as a proper foundation is laid and any
discrepancies between the reconstruction and the original event
are explained. See Sinai v. Polinger Co., 498 A.2d 520 (D.C.
App. 1985); Kaps Transport, Inc. v. Henry, 572 P.2d 72, 75
(Alaska 1977); Zolber v. Winters, 712 P.2d 525 (Idaho 1985);
Hritz v. Slawin, 706 S.W.2d 296 (Mo. App. 1986). The trial court
here initially doubted the sufficiency of the foundation for the
admission of the photographs. It admitted the photographs only
after extensive voir dire testimony explaining the discrepancies
between the reconstruction and the scene at the time of the
accident and on the usefulness of still photos for showing what a
driver might see from a moving vehicle. We conclude that the
court properly admitted the photographs.
D. Jury Instructions
Beck challenges several of the court's instructions to
the jury. Because jury instructions involve questions of law, we
apply our independent judgment. Kile v. Belisle, 759 P.2d 1292,
1297 n.15 (Alaska 1988). An erroneous statement of law will not
constitute reversible error unless it prejudiced one of the
parties. Grimes v. Haslett, 641 P.2d 813, 818 (Alaska 1982). An
erroneous instruction is prejudicial if it can be said that the
verdict may have been different had the erroneous instruction not
been given. Hazen v. Municipality of Anchorage, 718 P.2d 456,
462 (Alaska 1986).
1. Instruction 19
Beck argues Instruction 19 was erroneous because it
failed to instruct on her negligent failure to warn theory,
because it included a foreseeability element, and because it
imposed elements of actual or constructive notice.7
Instruction 19 is specifically based on the jury
instruction which we proposed in Johnson v. State, 636 P.2d 47,
56 n.14 (Alaska 1981), defining the standard for measuring the
liability of a public entity for a dangerous condition of public
property. As such, it accurately reflects the law. This
instruction, coupled with instruction 23 defining negligence,
cannot be considered objectionable for the reasons argued by
Beck. However, on remand, we see no reason for excluding an
instruction reflecting the inclusion of a duty to warn the
traveling public of dangerous conditions as a component of a
state's duty to exercise reasonable care in maintaining highways
if such an instruction is warranted by the evidence and requested
by Beck. See State v. Abbott, 498 P.2d 712, 726 (Alaska 1972)
(quoting comment b to 349 of the Restatement (Second) of Torts
that the duty to maintain safe highways includes the duty to warn
the traveling public of conditions which endanger travel).
2. Instruction 20
Beck argues that Instruction 20 was erroneous because
it limits the extent of the State's duty.8 However, as we stated
in State v. I'Anson, 529 P.2d 188, 195 (Alaska 1974), "the
appropriate standard of care required of [the State] and its
agents was to use reasonable care to keep the highway in a safe
condition for the reasonably prudent traveler." Since
Instruction 20 merely restates this duty, substituting "careful"
for "prudent,"it states the appropriate standard and does not
constitute error.
3. Instruction 27
Beck argues that the concepts of actual and
constructive notice included in Instruction 27 are "irrelevant
and an improper consideration to be thrust on the jury."9 While
this would be true when the plaintiff's sole theory is that the
dangerous condition was created by the State's own negligence,
notice would become relevant if the State did not create the
condition. See Johnson v. State, 636 P.2d 47, 52-53 (Alaska
1981) (in negligence action against the State for a defective
road condition, plaintiff must establish the State's actual or
constructive notice of the dangerous condition unless the State
caused the condition). This alternative was spelled out to the
jury in Instruction 19, discussed supra. Because Beck's theory
of the case was in part predicated on allegations of the State's
failure to adequately warn of the dangerous conditions created by
the landslide, these instructions were appropriate.
4. Instruction 35
Beck argues that the court erred by giving Instruction
35, which instructs the jury to find Jerrie Beck comparatively
negligent if they find she violated Alaska's headlight law. 13
AAC 04.020(e).
Comparative negligence instructions should not be given
unless sufficient evidence is presented from which a reasonable
person could infer that plaintiff was contributorily negligent.
Sebring v. Colver, 649 P.2d 932, 935 (Alaska 1982). Here, the
State concedes in its brief on appeal that "there was no evidence
available on whether or not Jerrie Beck was using her bright
headlights. . . ." (Emphasis added). Thus it was error to give
the instruction. On remand, such an instruction should not be
given unless the evidence at trial supports a reasonable
inference that Beck violated the headlight law.
5. Instruction 31
Before trial, the court granted the State's motion for
summary judgment on the issue of negligence per se based on
violation of 13 AAC 02.545(a).10 At trial, the court submitted
the underlying factual issue to the jury in instruction 31.11
Beck now challenges both the grant of summary judgment and the
jury instruction on this issue.
In Ferrell v. Baxter, 484 P.2d 250, 263-65 (Alaska
1971), we adopted the doctrine of negligence per se as set forth
in the Restatement (Second) of Torts 286, 288A and 288B
(1965). In determining whether to give a negligence per se
instruction, the trial court must first "determine whether the
conduct at issue lies within the ambit of the statute or
regulation in question, by applying the four criteria set out in
the Restatement (Second) of Torts 286 (1965)." State
Mechanical, Inc. v. Liquid Air, Inc., 665 P.2d 15, 18 (Alaska
1983) (footnote omitted). In reviewing this determination, which
is strictly a legal conclusion, this court will exercise its
independent judgment. Harned v. Dura Corp., 665 P.2d 5, 12
(Alaska 1983). If the trial court concludes that the statute is
applicable, the court has the limited discretion to refuse to
give the negligence per se instruction only if it determines that
"the rule of law is so obscure, unknown, outdated, or arbitrary
as to make inequitable its adoption as a standard of reasonable
care." 665 P.2d at 19. Such a determination will only be
reversed on appeal if it constitutes an abuse of discretion. Id.
Here, 13 AAC 02.545(a) meets the criteria of 286 of
the Restatement (Second) of Torts. Its purpose, exclusively or
in part, is to protect the public against personal injury and
property damage caused by those who drive while drinking
intoxicating beverages. Beck's argument that the appropriateness
of the negligence per se instruction depends on whether the
regulation's purpose is to prevent driver distraction and
inattentiveness or to prevent drivers from becoming impaired is
without merit. Neither the grant of summary judgment nor the
instruction constitute objectionable error.
E. Wrongful Death Damages
Before trial, the superior court decided in favor of
the State on several issues presented on motions of both parties.12
Beck challenges the superior court's resolution of these issues,
which involve the appropriate measure of damages in a wrongful
death action. Because these issues involve questions of law, we
will use our independent judgment in reviewing the superior
court's ruling. Jones v. Jennings, 788 P.2d 732, 735 (Alaska
1990).
First, Beck argues that damages for loss to the estate
in this case should be calculated by assuming the decedent would
have been a member of the most statistically probable household
size, which Beck's expert witness determined to include 2.6
persons.
Under AS 09.55.580(a), recovery in wrongful death cases
where the decedent is not survived by a spouse or dependents is
limited to pecuniary loss, which we have defined as "the probable
value of the deceased's estate had he not prematurely expired
less the actual value of the estate at death." Portwood v.
Copper Valley Elec. Ass'n, 785 P.2d 541, 542 (Alaska 1990)
(citing Osborne v. Russell, 669 P.2d 550, 560 (Alaska 1983)). In
Osborne, we held that loss to the estate in a case where the
decedent left no dependents is measured by the decedent's
probable future earnings, less the amount he would have spent on
living expenses assuming "an absence of dependents throughout the
deceased's life expectancy." 669 P.2d at 560. We further stated
that "the possibility that the deceased would later have acquired
dependents toward whom he would have expended sums has been ruled
by this court to be too speculative a matter for a jury to
consider." Id. (citing In re Pushruk, 562 P.2d 329, 332 (Alaska
1977)). See generally Millard F. Ingraham, Damages for Wrongful
Death in Alaska, 5 Alaska L. Rev. 293 (1988) (urging
interpretation of wrongful death statute which accords with
purpose of tort law to compensate victims for harms actually
suffered). We believe Osborne is dispositive and that the trial
court correctly ruled for the State on this issue.
Secondly, Beck argues that AS 09.17.040(a)-(b), which
requires the reduction to present value of future economic
damages "[i]n every case where damages for personal injury are
awarded,"(emphasis added), does not mandate reduction to present
value in wrongful death cases. Relying on the maxim of statutory
construction, expressio unius est exclusio alterius, Beck argues
that, as the phrase is used in the statute, "personal injury"
does not encompass death.
Until now, we have not had occasion to interpret AS
09.17.040.13 Interpretation of a statute begins with an
examination of its language construed in light of its purpose.
Vail v. Coffman Engineers, Inc., 778 P.2d 211 (Alaska 1989).
Statements made by a bill's sponsor during legislative
deliberations are relevant evidence when the court is trying to
determine legislative intent. Madison v. Alaska Dep't of Fish
and Game, 696 P.2d 168, 176 (Alaska 1985). The court's task here
has been summed up in the following way:
[T]he difficulties of so-called
interpretation arise when the Legislature has
had no meaning at all; when the question
which is raised on the statute never occurred
to it; when what the judges have to do is,
not to determine what the Legislature did
mean on a point which was present to its
mind, but to guess what it would have
intended on a point not present to its mind,
if the point had been present.
John Chipman Gray, The Nature and Sources of the Law, 173 (2d ed.
1972).
The provisions at issue here were passed as part of a
tort reform measure. See Ch. 139, SLA 1986. The bill was a
response to a liability insurance "crisis"and was intended to
increase the availability and affordability of liability
insurance. Tapes of Floor Debate in Alaska Senate, May 5, 1986.14
The amendment leading to AS 09.17.040 was introduced by
Representative Pettyjohn on the floor of the House on May 8,
1986. 1986 House Journal 3232. Representative Pettyjohn's
remarks on the floor indicate that the clear purpose of the
provision was to bring Alaska in line with other states which
reduce future economic awards to present value15 and to reverse
the rule we established that the trier of fact should be allowed
to compute loss of future earnings without reduction to present
value.16 Tapes of Floor Debate in Alaska House of
Representatives, May 8, 1986. Our review of the legislative
history suggests that the legislature did not anticipate the
argument Beck makes here. Nonetheless, the clear legislative
purpose requires us to interpret AS 09.17.040(b) to require the
reduction to present value of future economic damages in wrongful
death cases in the absence of an agreement of the parties to do
otherwise.17 Where, as here, the legislative purpose can be
ascertained with reasonable certainty, the maxims of construction
relied on by Beck are secondary to the rule that a statute should
be construed in light of its purpose. See Chevron U.S.A., Inc.
v. LeResche, 663 P.2d 923, 931 (Alaska 1983). Thus we reject
Beck's statutory construction arguments.18
IV. CONCLUSION
In summary, we conclude that the trial court erred in
dismissing Beck's NIED claim on summary judgment. Further, we
conclude that the trial court's abuse of discretion in denying
Beck's challenge for cause of juror Baker constitutes reversible
error.
REVERSED AND REMANDED.
_______________________________
1. In Kavorkian, we permitted a plaintiff to assert a claim
for NIED after he had rushed to the scene of his daughter's fatal
automobile accident and watched as rescuers removed his daughter
from the wreckage. 727 P.2d at 1040-43. In Mattingly, the
plaintiff was in Ketchikan when he learned of the accident which
occurred in Sitka. 743 P.2d at 365-66. In denying recovery to
the plaintiff in Mattingly, we noted that he was a considerable
distance from the accident scene, that the shock of observing the
injured accident victims did not follow "closely on the heels of
the accident,"and that he "had time to steel himself"during the
150 mile flight from Ketchikan to Sitka. Id.
2. In Thing, the California Supreme Court upheld summary
judgment dismissing the NIED claim of a mother who, after
learning that her son had been struck by a car, rushed to the
scene to observe him, bloodied and unconscious, lying in the
street. Noting that Dillon has led to uncertainty and "ever
widening circles of liability,"771 P.2d at 819, the Thing court
rejected the strict foreseeability analysis of Dillon and adopted
a "bright-line" test. 771 P.2d at 827-30. It held that a
plaintiff may recover for NIED if, and only if, the plaintiff:
(1) is closely related to the injury
victim; (2) is present at the scene of the
injury producing event at the time it occurs
and is then aware that it is causing injury
to the victim; and (3) as a result suffers
serious emotional distress -- a reaction
beyond that which would be anticipated in a
disinterested witness and which is not an
abnormal response to the circumstances.
Id. at 829-30 (footnotes omitted).
3. Alaska Civil Rule 47(c) reads in pertinent part:
Challenges for Cause. After the
examination of prospective jurors is
completed and before any juror is sworn, the
parties may challenge any juror for cause. A
juror challenged for cause may be directed to
answer every question pertinent to the
inquiry. Every challenge for cause shall be
determined by the court. The following are
grounds for challenge for cause:
. . . .
(2) That the person is biased for
or against a party or attorney.
(3) That the person shows a state
of mind which will prevent him from rendering
a just verdict, or has formed a positive
opinion on the facts of the case or as to
what the outcome should be, and cannot
disregard such opinion and try the issue
impartially.
(4) That the person has opinions or
conscientious scruples which would improperly
influence his verdict.
4. The trial court's questioning of Baker seemed tailored
to rehabilitate her as a qualified juror rather than to ascertain
her willingness to perform her duty as a juror in a fair and
impartial manner. While we recognize the difficulties in
impaneling a jury and are reluctant to intrude on the trial
court's discretion in this area, we have serious doubts about the
appropriateness of the trial court's rehabilitation efforts,
particularly when other prospective jurors remain on the panel,
as was the case here.
5. In denying Beck's challenge for cause, the trial court
stated "I think she is capable of understanding the court's
instructions and understanding the concepts of negligence and
concepts of legal fault. And therefore, I think she can serve."
6. On the special verdict form, the only question the jury
answered was whether it was "more likely than not that the road
was in a dangerous condition at the time of the accident," to
which the jury answered "No." While Baker's visit to the scene
occurred several days after the accident and after the State had
performed a final sweeping of the roadway, we cannot say that her
knowledge of the facts of the case was immaterial, particularly
in light of the opinions which it engendered.
7. Instruction 19 reads:
To be entitled to recover money
damages from the State of Alaska, the estate
of Jerrie Beck must prove that it is more
likely true than not true that:
1. The Mitkof Highway at the time
of the crash was in a dangerous condition;
2. The dangerous condition was a
legal cause of the crash;
3. The crash occurred in a way that
was reasonably foreseeable as a consequence
of the dangerous condition of the highway;
and
4. Either
a. the state
was negligent in its
maintenance of the highway, or
b. the state
had actual or constructive
notice of the dangerous
condition and a reasonable
amount of time to correct the
dangerous condition prior to
the crash.
8. Instruction 20 reads:
The roadway was in a dangerous
condition if it was not in a reasonably safe
condition for the reasonably careful driver.
9. Instruction 27 reads:
The State had actual notice of the
alleged dangerous condition if an officer or
an employee of the Department of
Transportation and Public Facilities had
notice or actual knowledge of the existence
of the condition and knew or should have
known of its dangerous condition.
The State had constructive notice
of the alleged dangerous condition if the
condition had existed for such a period of
time before the accident in question and was
of such an obvious nature that the State, in
the exercise of reasonable care, should have
discovered the alleged condition and its
dangerous character.
10. 13 AAC 02.545(a) provides:
No person may drink an intoxicating
beverage while driving a vehicle.
11. Instruction 31 reads:
You are instructed that if Jerrie
Beck was drinking an intoxicating beverage
while driving at the time in question, she
was negligent as a matter of law and you must
so find. You must still determine whether
Jerrie Beck's actions of drinking an
intoxicating beverage while driving, if
proved, were a legal cause of the accident.
12. The State sought a protective order to preclude the
testimony of Beck's expert witness, economist Eric McDowell, on
issues relating to damages. Beck moved to determine the law of
the case on related issues.
13. In Kulawik v. ERA Jet Alaska, 820 P.2d 627 (Alaska
1991), we were asked to consider the propriety of a damages award
in a wrongful death case. Because the cause of action in that
case accrued before the effective date of AS 09.17.040, we were
not called upon to interpret that statute. 820 P.2d at 629 n.2.
14. See also files of House Judiciary Committee (microfiche
# 3417-31), Senate Judiciary Committee (microfiche 4110-19),
Senate Labor and Commerce Committee (microfiche 4191), and Senate
Finance Committee (microfiche 2251-54). See also C.S.S.B. 377
(Jud), 14th Leg. 2nd Sess. (1986) (containing findings and
purpose which were not included in final bill).
15. For example, California law requires the reduction to
present value of awards of future economic damages in wrongful
death cases. See 6 B. E. Witkin, Summary of California Law,
Torts 1425 at 906, 1428 at 908 (9th ed. 1988).
16. In Beaulieu v. Elliott, 434 P.2d 665, 671 (Alaska 1967),
we held that the trier of fact should be permitted to compute
loss of future earnings without reduction to present value. We
extended this rule to wrongful death cases in Leavitt v.
Gillaspie, 443 P.2d 61, 69 (Alaska 1968).
17. AS 09.17.040(c) allows the parties to agree to compute
future economic damages without reduction to present value under
the rule of Beaulieu v. Elliott, 434 P.2d 665 (Alaska 1967).
18. We have considered the third issue raised by Beck
regarding wrongful death damages and find Beck's arguments to be
without merit.
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