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Gonzales v. Safeway Stores, Inc. (10/7/94), 882 P 2d 389
<![CDATA[
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.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID R. GONZALES, )
) Supreme Court No. S-5224
Appellant, )
) Superior Court No.
v. ) 3AN-86-14160 CI
)
SAFEWAY STORES, INC., ) O P I N I O N
)
Appellee. ) [No. 4131 - October 7, 1994]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Karen Hunt, Judge.
Appearances: Murphy L. Clark, Law
Offices of Murphy L. Clark, Anchorage, for
Appellant. Colleen J. Moore, Phillip J.
Eide, Eide & Miller, P.C., Anchorage, for
Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton, Justices, and
Bryner, Justice, pro tem.*
MATTHEWS, Justice.
David Gonzales was catastrophically injured in a single-
vehicle accident which occurred near Wasilla on August 3, 1986.
Gonzales sued Safeway Stores, Inc., claiming that Safeway had
negligently and recklessly sold liquor to the other occupants of
the vehicle, Steven Krueger and Mike Gagnon, under circumstances
in which Safeway's clerks either knew or should have known that
Krueger and Gagnon were intoxicated.
After discovery was conducted, Safeway moved for
summary judgment. The superior court granted this motion and
entered judgment in Safeway's favor. Gonzales appealed. We
reversed. Gonzales v. Krueger, 799 P.2d 1318 (Alaska 1990)
(Gonzales I). The following are the facts of the accident as
recited in Gonzales I.1
At about 5:20 p.m. Gagnon entered
the Safeway liquor store, selected a quart
bottle of schnapps and approached the
checkout counter. The clerk, Ramona Van
Cleve, was concerned that Gagnon was drunk
and told him she would not sell the alcohol
to him. Gagnon then said he wasn't driving.
Van Cleve called her supervisor,
Connie Schmidt, for advice. Schmidt asked
Gagnon if he had been drinking. When he said
yes, she said that she was not "allowed to
sell liquor to anyone who had been drinking
and let them go out and get in a car and
drive away." Gagnon repeated that he was
not driving and added that his friend would
drive. Schmidt then went outside the store
as Krueger walked up. Krueger confirmed to
Schmidt, and perhaps to Van Cleve, that
Gagnon would not be driving. According to
Schmidt, Krueger appeared to be sober. His
speech and gait appeared normal and he did
not have alcohol on his breath. Schmidt
approved the sale of schnapps to Gagnon.
Schmidt then watched Gagnon approach the
passenger side of the vehicle and Krueger
approach the driver side.
Inside the truck Gagnon opened the
bottle and shared it with Krueger who was
driving. The accident occurred at about 6:00
p.m.
Following the accident, Krueger was
taken to the emergency room of Valley
Hospital where he reported to a physician
that he had six beers on the evening of the
accident. A blood alcohol test was taken at
8:30 p.m. which showed that Krueger had a
blood alcohol level of 0.16% at the time of
the accident. The legal limit is 0.10%. AS
28.35.030(a)(2).
Id. at 1319 (footnotes omitted). Gonzales claims that he was
asleep in the back seat of the truck cab at the time of the
transaction at Safeway and at the time of the accident.
PROCEDURAL HISTORY
Following the remand of the case to the superior court,
Safeway filed a motion for partial summary judgment seeking a
ruling that all claims not predicated on the dram shop act be
dismissed. This motion was granted. Safeway also moved to
exclude any evidence concerning any aspect of Safeway's training
programs concerning liquor store clerks. This motion was
granted. Gonzales filed a motion for partial summary judgment
requesting a declaration that the dram shop act is
unconstitutional. This motion was denied.
The trial court appointed a discovery master to make
recommendations on discovery disputes and ordered that the party
who lost any dispute pay the master's fees. Shortly before trial
Gonzales moved to discharge the discovery master; the court
denied this motion.
A jury trial was conducted. At the conclusion of the
presentation of the evidence, Gonzales moved for a directed
verdict as to Safeway's criminal negligence, and whether Gagnon
was an intoxicated person at the time of the sale. The trial
court denied these motions.
The jury returned a special verdict, giving a negative
answer to the following question: "Did Safeway make a criminally
negligent sale of alcoholic beverage to a drunken person on
August 3, 1986?" Based on the special verdict, judgment in favor
of Safeway was entered. Safeway was awarded costs of $54,663.97
and attorney's fees of $130,622.
Gonzales moved for a new trial and judgment notwith
standing the verdict. These motions were denied. He now
appeals. We affirm.
On appeal Gonzales makes numerous claims of error. We
find it necessary to discuss five of them.
DISCUSSION
A. Did the trial court err in granting partial
summary judgment to Safeway, dismissing all claims not
based on the dram shop statute, and excluding evidence
that the clerks had not been properly trained?
We repeat at this point the introduction to the
relevant statutes as set forth in our prior opinion in this case:
Under the dram shop statute, a
person who provides alcoholic beverages to
another person is immune from civil liability
for damages caused by the intoxication of
that person unless the provider is licensed
to dispense such beverages and the person to
whom the beverages are provided is a "drunken
person."3 A "drunken person"is a person
whose conduct is substantially and visibly
impaired as a result of alcohol ingestion.4
______________________________________________
3 AS 04.21.020 reads in pertinent
part:
Civil liability of
persons providing alcoholic beverages.
A person who provides alcoholic
beverages to another person may not be
held civilly liable for injuries
resulting from the intoxication of that
person unless the person who provides
the alcoholic beverages holds a license
authorized under AS 04.11.080-04.11.220,
or is an agent or employee of such a
licensee and
....
(2) the alcoholic
beverages are provided to a drunken
person in violation of AS
04.16.030.
At the time of the accident, AS
04.16.030 read in full:
Sale or disposition of
alcoholic beverages to drunken persons.
A licensee, an agent, or employee may
not with criminal negligence
(1) sell, give, or barter
alcoholic beverages to a drunken person;
(2) allow another person
to sell, give, or barter an alcoholic
beverage to a drunken person within
licensed premises;
(3) allow a drunken
person to enter and remain within
licensed premises or to consume an
alcoholic beverage within licensed
premises;
(4) permit a drunken
person to sell or serve alcoholic
beverages.
AS 04.21.080(a)(1) defines criminal
negligence as follows:
[A] person acts with
"criminal negligence"with respect
to a result or to a circumstance
described by a provision of law
defining an offense when the person
fails to perceive a substantial and
unjustifiable risk that the result
will occur or that the
circumstances [sic] exists; the
risk must be of such a nature and
degree that the failure to perceive
it constitutes a gross deviation
from the standard of care that a
reasonable person would observe in
the situation.
4 AS 04.21.080(b)(8) provides:
"[D]runken person"
means a person whose physical or
mental conduct is substantially
impaired as a result of the
introduction of an alcoholic
beverage into the person's body and
who exhibits those plain and easily
observed or discovered outward
manifestations of behavior commonly
known to be produced by the
overconsumption of alcoholic
beverages.
Gonzales I, 799 P.2d at 1319-20 & nn.3-4.
In form, AS 04.21.020 merely expresses a rule of
immunity and the conditions under which this immunity does not
apply. It does not expressly define the elements of causes of
action which may be maintained against a provider of liquor when
immunity is not available. However, .020 clearly implies that
some causes of action may be maintained. Further, we have
construed AS 04.21.020 as impliedly expressing one rule which
applies to claims against liquor providers. In Kavorkian v.
Tommy's Elbow Room, 711 P.2d 521 (Alaska 1985) (Kavorkian II), we
held that AS 04.21.020 implied that a licensee who with criminal
negligence provides alcoholic beverages to a drunken person could
be held liable for damages resulting from the intoxication of the
drunken person without the "further link that the intoxication be
caused by the negligent providing." 711 P.2d at 523. We
recognized in Gonzales I, however, that the basic function of AS
04.21.020 is to state a rule of immunity and that "traditional
principles"of tort law apply when the conditions of immunity are
not met. 799 P.2d at 1321, 1322.
It follows that the trial court's order granting
partial summary judgment dismissing causes of action "for common
law negligence, negligent failure to train . . . as well as any
other causes of action not predicated on AS 04.21.020" mistook
the function of that section. However, under the circumstances
of this case this error was harmless. Even though AS 04.21.020
does not define the elements of all viable causes of action
against liquor licensees, it does present a bar to all such
causes of action based on providing alcoholic beverages if the
conditions giving rise to immunity are met. In this case, the
jury's conclusion that Safeway did not with criminal negligence
sell to a drunken person means that Safeway was immune under the
statute for all unlawful providing claims.
Gonzales argues specifically that he has a cause of
action under AS 04.21.030. This section provides that a licensee
has a duty of reasonable care to observe that its business is
lawfully conducted and that the duty includes a duty "to insure
that agents or employees comply with the laws concerning the sale
of liquor."2 Gonzales' argument concerning this section lacks
merit because, assuming that this section states duties giving
rise to tort liability, such liability is nonetheless subject to
the rule of immunity expressed in AS 04.21.020 in cases arising
out of liquor sales. Tommy's Elbow Room, Inc. v. Kavorkian, 727
P.2d 1038, 1045 (Alaska 1986) (Kavorkian III).
Gonzales also argues in his opening brief that the
training evidence bore on the question of Safeway's criminal
negligence because such evidence
illustrates that Safeway ignored
responsible alcoholic beverage sales
practices in an effort to increase revenues.
Had the plaintiff been allowed to show
Safeway's profit motive in selling alcohol to
minors as well as intoxicated persons, the
jury would have concluded that Safeway acted
with criminal negligence when it sold alcohol
to Gagnon.
This argument fails for the same reason as Gonzales' argument
concerning AS 04.21.030. Although Safeway could be liable for
negligent training if it were found not to be immune under AS
04.21.020, the jury found Safeway to be immune, and thus any
error in excluding the evidence was harmless.
Gonzales' argument may be that Safeway's assumed
negligent training should have been considered by the jury in
making the immunity decision. In his reply brief Gonzales argues
that evidence of how other retailers train their sales personnel
is relevant to the applicable standard of care governing Safeway.3
While this is true as a matter of general tort law, evidence of
industry standard is irrelevant to the statutory immunity
decision. Under AS 04.21.020 and the definition of drunken
person set forth in AS 04.21.080(b)(8), the focus of the jury's
attention in deciding the question of "criminal negligence"is on
whether the seller responded as a reasonable person would to the
appearance and outward manifestations of behavior of the person
to whom the alcoholic beverage was sold, not on any specialized
training the seller should have had as an aid to recognizing when
a person is intoxicated.
B. Did the court err in refusing to grant Gonzales'
motions for a directed verdict and JNOV regarding
whether Gagnon was a drunken person and whether Safeway
was criminally negligent?4
The evidence as to whether Gagnon was a drunken person
at the time of the sale was conflicting. Schmidt, the Safeway
manager who approved the sale, testified that Gagnon did not have
trouble walking, did not slur his speech, did not exhibit unusual
behavior, and did not appear generally to be drunk. In addition,
a pathologist testified, based on assumptions warranted by the
evidence, that Gagnon's blood alcohol level at the time of the
sale would have been insufficient to cause him to exhibit common
signs of intoxication and that Gagnon would not have fit the
statutory definition of a drunken person at that time. Thus,
when viewed most favorably to Safeway, the evidence could
reasonably support a conclusion that Gagnon was not a drunken
person. Since this was so, the trial court properly denied the
directed verdict and JNOV motions concerning whether Gagnon was a
drunken person.
The question of Safeway's "criminal negligence" is
dependent on whether Gagnon was a drunken person. Safeway could
not have been criminally negligent in the sense called for in AS
04.16.030 unless Gagnon was a drunken person. Since that was a
question on which reasonable minds could differ, the court also
did not err in denying Gonzales' motions for a directed verdict
and JNOV concerning criminal negligence.
C. Is the dram shop act constitutional?
Gonzales challenges limited statutory dram shop
immunity as contrary to the equal protection and due process
clauses of the Fourteenth Amendment of the United States
Constitution; the equal rights clause of article I, section 1 of
the Alaska Constitution; and article I, section 7 of the Alaska
Constitution. His argument is that "the elevated burden of proof
required by the dram shop act,"the criminal negligence standard,
discriminates against those injured by the wrongful sales of
liquor licensees, as compared to other tort claimants, and is
completely bereft of any rational justification.
The premise of Gonzales' argument is that our statutory
system makes maintaining an action against a liquor licensee more
difficult than maintaining an action against other tort feasors.
The validity of this premise is open to question. In Williford
v. L.J. Carr Investments, Inc., 783 P.2d 235, 239 n.12 (Alaska
1989), we interpreted the requirement of criminal negligence in
AS 04.16.030 to be satisfied in a civil case upon proof of a sale
by a licensee to an intoxicated person who manifests signs of
intoxication. Relying on the legislative history of the dram
shop act, we noted that the legislature had defined "criminal
negligence" as a "gross deviation"from the standard of care
which, in the context of the liquor licensee, exists when the
licensee sells to an intoxicated person who exhibits "plain" and
"easily seen or discovered"manifestations of drunkenness. Id.
However, in Kavorkian v. Tommy's Elbow Room, 694 P.2d 160, 167
(Alaska 1985) (Kavorkian I), we held that the trial court did not
err in instructing the jury on the definition of criminal
negligence as set forth in AS 04.21.080 or in refusing to
instruct the jury that selling to a plainly intoxicated person
was tortious.5 Because this case was submitted to the jury under
instructions like those which were found not to be error in
Kavorkian I, we accept the heightened liability standard premise
of Gonzales' constitutional argument.6
1. Equal protection.
The constitutional right to equal protection is a
command to state and local governments to treat those who are
similarly situated alike. The common question in equal
protection cases is whether two groups of people who are treated
differently are similarly situated and thus entitled to equal
treatment. Equal protection jurisprudence concerns itself
largely with the reasons for treating one group differently from
another. In reviewing equal protection claims we view the
enactment in question as creating, by its differential treatment,
separate groups. To use an example offered in this case, tort
claimants against liquor stores must prove "criminal negligence"
in order to recover, whereas tort claimants against medical
practitioners need only prove ordinary negligence. Thus liquor
store tort claimants are a group separate from medical
malpractice tort claimants because they are treated differently
by law. This separation by different legal treatment is referred
to as a "classification." We ordinarily review a classification
under Alaska's equal rights clause by asking whether a legitimate
reason for disparate treatment exists, and, given a legitimate
reason, whether the enactment creating the classification bears a
fair and substantial relationship to that reason.7 State, Dep't
of Revenue v. Cosio, 858 P.2d 621, 629 (Alaska 1993).
The challenged classification here is the dram shop
act's separation of tort claimants against liquor sellers -- such
claimants must prove criminal negligence -- from tort claimants
against other types of defendants who are required merely to
prove negligence. This classification then is defined not merely
by injured people seeking redress in tort, but by the type of
defendant against whom redress is sought. Even though injured
claimants as a class may have similar interests, tort defendants
cannot be viewed monolithically. The function, utility, needs,
and general circumstances of different callings are diverse, and
real diversity justifies differential treatment. Keyes v. Humana
Hospital Alaska, Inc., 750 P.2d 343, 351-52, 357-58 (Alaska 1988)
(statute prescribing special rules governing suits against health
care providers held constitutional in view of perceived crisis in
malpractice insurance rates, the need to lower the costs and
improve the availability of health care, and the need to
eliminate frivolous malpractice claims and encourage meritorious
ones). Thus, in Turner Construction Co., Inc. v. Scales, 752
P.2d 467, 470-72 (Alaska 1988), we analyzed a statute of
limitations which benefitted design professionals over other
potential defendants in cases arising from defective buildings
and found the statute violative of equal protection because it
improperly discriminated against defendants who were similarly
situated. Directing our attention then to the defendant-defined
aspect of the challenged classification in the present case, the
following points are evident.
First, at common law a liquor seller was not liable for
injuries caused by a drunken person to whom the seller had
furnished liquor:
At common law, a purveyor of
alcoholic beverages could not be liable for
injuries or damage caused by an intoxicated
customer. "The rationale for the common law
rule was that the consumption and not the
sale of the liquor was the proximate cause of
injuries sustained as a result of
intoxication."
Nazareno v. Urie, 638 P.2d 671, 673 (Alaska 1981) (quoting Vesely
v. Sager, 486 P.2d 151, 155 (Cal. 1971) (citations omitted)).
Our dram shop act was enacted in 1980, at a time when no decision
of this court had disapproved of this rule.8 Thus, one purpose
of the dram shop legislation was to permit liability of liquor
licensees where it had not previously existed. A claim that the
common law rule of non-liability of liquor dealers violated equal
protection guarantees could not easily be made. It follows that
a statute changing this rule of non-liability and imposing
liability in cases of gross but not ordinary negligence does not
run afoul of the constitution. The statute narrows the
differences which previously existed.
Second, the defendant class most like liquor sellers is
the class encompassing sellers of food and non-intoxicating
beverages. This class is liable for selling dangerously
defective or adulterated products. W. Prosser, Law of Torts,
99, at 658-662 (4th ed. 1971). Liquor sellers have the same
liability, on the same terms. But the liability involved in the
present type of case is different. Liability in the intoxicating
liquors setting is based on the consumer's abuse of the product,
not on a defect in the product. This liability has no ready
comparison with the liability of food or non-intoxicating
beverage sellers. Thus no particular reason exists why the same
standards for liability imposed on other sellers should be
imposed on liquor sellers.
Third, there is a trade-off between criminal negligence
-- which we assume for purposes of this discussion to be more
difficult to prove than ordinary negligence -- and cause. Under
ordinary principles of causation a plaintiff would have to prove
that the liquor unlawfully sold was a substantial contributing
factor to the intoxication which caused the accident. Nazareno,
638 P.2d at 677. Under the dram shop act the plaintiff has an
easier task. The plaintiff must show only an unlawful sale to an
intoxicated person who, in consequence of such intoxication,
caused injury to another. Kavorkian II, 711 P.2d at 523. The
plaintiff need not show that the sale substantially contributed
to the intoxication.
In our view, each of these points -- historic common
law immunity, lack of a comparable tort applicable to other
defendants, and easing of legal cause requirements -- justifies
imposing a standard for liability higher than ordinary
negligence. We conclude therefore that such a standard does not
violate equal protection guarantees.
2. Due process.
The constitutional requirement of substantive due
process acts as a guarantee that legislation be at least
minimally rational:
The constitutional guarantee of substan
tive due process assures that a legislative
body's decision is not arbitrary but instead
based on some rational policy. Concerned
Citizens of South Kenai Peninsula v. Kenai
Peninsula Borough, 527 P.2d 447, 452 (Alaska
1974). If any conceivable legitimate public
policy for the enactment is either apparent
or offered by those defending the enactment,
the party challenging it must disprove the
factual basis for the justification.
Keyes v. Humana Hospital Alaska, Inc., 750 P.2d 343, 351, 352
(Alaska 1988).
Imposing a heightened liability standard on claims
regarding unlawful provision of liquor meets this standard. As
Safeway points out, the intoxicated consumer of alcohol can
reasonably be regarded as the actor most responsible for the
injuries caused in cases of this nature. Adopting that view,
requiring particularly egregious conduct by the liquor seller as
a prerequisite to finding the seller liable is at least minimally
rational. Thus Gonzales' due process claim also fails.
D. Was appointment of the discovery master reversible
error?
Because of ongoing discovery disputes, the court on May
25, 1988, entered an order appointing a discovery master. The
order required that motions to resolve discovery disputes be
heard by the master, who would respond to such motions by making
a report with recommended rulings to the trial court. The
parties were given ten days after the master's report and
recommendation to object to any recommendation of the master.
Objections were to be ruled upon by the court. The order
provided that the master, a private attorney, would be paid at
his regular hourly rate "by the party(s) on the losing side of
the master's recommended ruling." Further, "in matters which are
'appealed' to the court, payment shall be by the party(s) losing
the 'appeal.'" Payments were to be made within ten days of the
due date.
After the master had made a number of rulings, some of
them unfavorable to Gonzales, Gonzales on October 25, 1991, filed
a motion to discharge the master. The court denied this motion
on November 14, 1991. Trial in this case began one week later.
The master's total charges to Gonzales were $5,152. Gonzales did
not pay these charges. The superior court on June 29, 1992,
entered an order to show cause why Gonzales should not be held in
contempt for failing to pay them. Apparently the trial court has
never issued a follow-up order on the order to show cause,
probably because of the intervention of Gonzales' appeal.
Gonzales argues that requiring him to pay the charges
of the discovery master infringes upon his access to the court
and violates his due process and equal protection rights. He
states further that
the work for which the master charged is
work normally provided free of charge to all
litigants by the court system as a part of
the proper operation of the government. . . .
Had the parties wanted to pay for justice,
they could have hired a rent-a-judge or
agreed to some other form of alternative
dispute resolution.
In response Safeway argues, among other things, that
Gonzales has made no convincing showing of indigency, noting that
he received over $750,000 in prior settlements with other
defendants in this case. Safeway also argues that Rule 26(f)
permits the appointment of the master, since the rule authorizes
the court to call a discovery conference, following which it may
enter an order establishing a plan for discovery and "determining
such other matters including the allocation of expenses, as are
necessary for the proper management of discovery in the action."
Surprisingly, the parties do not mention Civil Rule 53
which authorizes the court to appoint a special master whose
compensation "shall be fixed by the court, and shall be charged
upon such of the parties or paid out of any fund or subject
matter of the action which is in the custody and control of the
court, as the court may direct." Civil Rule 53(a) also provides
for the enforcement of orders to pay for compensation, stating:
The master shall not retain the
master's report as security for his
compensation; but when the party ordered to
pay the compensation allowed by the court
does not pay it after notice and within the
time prescribed by the court, the master is
entitled to a writ of execution against the
delinquent party.
Gonzales has not demonstrated that he objected to the
initial appointment of the master in 1988. He did move to
discharge the master shortly before trial was to begin, and that
motion was denied only a week before trial. At the time of the
court's order, the master's work was substantially completed and,
although the court gave no reasons for denying the motion to
discharge, the motion could have been denied on timeliness
grounds. Because no objection was made to the initial order of
appointment, Gonzales has waived his right to challenge the
initial order on appeal.9 The motion to discharge, of course, is
properly presented on appeal. However, in view of its timing,
denial of the motion was clearly proper.
E. Attorney's fees and costs.
The court awarded attorney's fees of $130,622 and costs
of $54,663.97. The fee award amounted to approximately twenty-
five percent of the actual attorney's fees paid by Safeway.
These awards are challenged on the ground that Safeway's
documentation in support of its claims was inadequate. In Hayes
v. Xerox Corp. 718 P.2d 929, 939 (Alaska 1986), we held that
prevailing parties in cases where there is no money judgment
should submit "accurate records of the hours expended and a brief
description of the services reflected by those hours." The trial
court ruled that Safeway's initial motion for attorney's fees was
insufficiently supported under the Hayes standard but allowed
Safeway to file a supplemental motion with better documentation.
Safeway filed a supplemental motion, backed up by 190 pages of
original billings from its counsel. The billings were redacted.
Because of attorney-client privilege concerns, certain names and
subjects were crossed out and thereby made illegible.
Gonzales claims that the court abused its discretion in
permitting a supplemental motion for attorney's fees and that,
alternatively, the documents submitted in support of the supple
mental motion were inadequate because of their redaction.
Both claims lack merit. Where a party has failed in
the opinion of the court to adequately support its claim, the
court has the discretion to allow supplementation or refiling.
The redaction of the billings does not materially interfere with
an understanding of the services performed sufficient for the
purposes of an award of costs and fees.
CONCLUSION
The judgment is AFFIRMED.10
_______________________________
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 As we noted in the opinion, this account represents
that view of the facts which is most favorable to Gonzales.
2 AS 04.21.030 provides:
The licensee has a duty to exercise
that degree of care that a reasonable person
would observe to insure that a business under
the person's control is lawfully conducted.
This duty of the licensee includes, but is
not limited
(1) to insuring the compliance by
agents or employees with this title and
regulations adopted under this title,
including acting with reasonable diligence to
determine that agents or employees are
advised of the provisions of this title and
the regulations adopted under this title,
either by securing the agent's or employee's
written acknowledgement of posted
instructions or otherwise; and
(2) to insuring the compliance of
the premises with public health, fire, and
safety codes and ordinances of the state or
municipality having jurisdiction.
3 We note that Gonzales did not make this argument in the
superior court. As an alternative ground for our decision, we
consider this point waived. Evron v. Gilo, 777 P.2d 182, 186
(Alaska 1989).
4 In reviewing a denial of a motion for directed verdict
or a motion for JNOV, we ask whether, viewing the evidence in the
light most favorable to the non-moving party, reasonable jurors
could differ in their assessment of the particular issue.
Kavorkian v. Tommy's Elbow Room, 694 P.2d 160, 163 (Alaska 1985).
5 Our more recent Williford decision did not mention this
aspect of Kavorkian I.
6 The validity of the instructions on criminal negligence
is not raised on this appeal.
7 However, when a classification is based on a suspect
factor such as race, the question is much more demanding: is
there a "compelling"reason for the classification, and if so, is
the enactment narrowly designed to bring about its goal? State,
Dep't of Revenue v. Cosio, 858 P.2d 621, 626 (Alaska 1993). This
is commonly referred to as strict scrutiny. Additionally, under
federal equal protection analysis, there are quasi-suspect
factors such as gender and illegitimacy where the inquiry is
whether the purpose of the enactment is "important"and whether
the enactment bears a substantial relationship to the accomplish
ment of its purpose. Id. This is usually referred to as inter
mediate scrutiny. Under this court's equal protection analysis
we use a "sliding scale"between strict scrutiny and the most
tolerant "legitimate reason" test. "As the right asserted
becomes 'more fundamental' or the classification scheme employed
becomes 'more constitutionally suspect,' the challenged law 'is
subjected to more rigorous scrutiny at a more elevated position
on our sliding scale.'" Id. at 629 (quoting State v. Ostrosky,
667 P.2d 1184, 1192-93 (Alaska 1983)). We have, however, in the
sixteen years since the sliding scale approach was first
formulated in State v. Erickson, 574 P.2d 1, 11-12 (Alaska 1978),
only identified three stops on the sliding scale -- at the
relaxed, intermediate, and strict levels of scrutiny. The
classification in this case relates merely to economic interests
and does not involve suspect or quasi-suspect classifications.
We have consistently reviewed challenges to such classifications
using the relaxed scrutiny test. Cosio, 858 P.2d at 629; Turner
Constr. Co., Inc. v. Scales, 752 P.2d 467, 470 (Alaska 1988).
8 We rejected the old common law rule in Nazareno,
decided in 1981, and held that "there is a general common law
duty, independent of statute, requiring vendors to conduct
themselves with reasonable care and prudence when dispensing
alcohol." 638 P.2d at 674.
9 See Dean v. Firor, 681 P.2d 321, 326-327 (Alaska 1984)
(holding that a party objecting to the propriety of the superior
court's reference to a master "should do so prior to or at the
time of the reference,"or, if such objection is unfeasible,
should do so before the judge at the earliest possible
opportunity).
10 Gonzales' other points on appeal relate to the amount
of compensatory and punitive damages, proximate cause, and the
allocation of fault between potentially responsible parties. In
view of our decision in this case affirming the verdict of the
jury that Safeway did not sell to a drunken person, these issues
are moot.
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