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Estate of Day v. Willis (6/30/95), 897 P 2d 78
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NOTICE: This is subject to formal 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
The Estate of JAMES THOMAS DAY, )
by his personal representatives, )
HARVEY STROSIN and EMMA STROSIN, )
and DESIARLLE DAWN DAY, by her )
next friends, HARVEY STROSIN and )
EMMA STROSIN, )
) Supreme Court No. S-5543
Appellants, )
) Superior Court No.
v. ) 3AN-91-260 CI
)
JAMES WILLIS, ROBERT W. LEGER, )
STATE OF ALASKA and STATE OF )
ALASKA, DEPARTMENT OF TRANS- )
PORTATION and PUBLIC FACILITIES )
for ANCHORAGE INTERNATIONAL )
AIRPORT SECURITY, jointly and )
severally, ) O P I N I O N
)
Appellees. ) [No. 4226 - June 30,
1995]
___________________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Joan M. Katz, Judge.
Appearances: Carl Frasure, Anchorage,
for Appellants. Venable Vermont, Jr.,
Assistant Attorney General, Anchorage,
Charles E. Cole, Attorney General, Juneau,
for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
COMPTON, Justice.
The issue before the court is whether law enforcement
officers owe a legal duty to fleeing offenders to refrain from
pursuing them in order to protect the offenders from harm that
may arise from the offenders' own actions during a high speed
pursuit. We hold that they do not.
I. FACTS AND PROCEEDINGS
In June 1985 Anchorage International Airport Security
Officer James Willis was on a routine perimeter check of the
airport. He drove past a park, noting several cars there in
violation of the park curfew. Observing what appeared to be a
liquor bottle on the roof of one of the cars, Willis entered the
park to investigate. He called for the assistance of a back-up
officer; Sergeant Robert W. Leger responded to the call. Upon
the arrival of Leger, an individual later identified as James Day
ran into adjacent woods. The remaining individuals were
dispersed. The officers called dispatch for information on the
single car left in the area. They learned that it belonged to
Day, who was wanted by the Anchorage Police Department (APD) for
a stop sign violation, and assault and battery. Unable to locate
Day, the officers withdrew from the park to await the arrival of
a canine unit from APD. They also considered the possibility
that Day would voluntarily come out of the park. Shortly
thereafter Day's car sped by. Leger pursued the car, reaching
speeds of 70-75 miles per hour. After pursuing the car for some
time, Leger claims that he decided to slow down because (1) he
lost sight of the car, (2) the road was wet, and (3) he felt that
further pursuit was not prudent. He also knew that APD was
responding from the direction in which the car was headed. When
Leger reached the top of a hill, he saw that the car had left the
road and crashed. Day, who indeed was driving, died in this
accident. An autopsy revealed that Day's blood alcohol level was
.21% and his urine alcohol level .25%.
In May 1987 the Estate of Day (Estate) filed a wrongful
death suit against the State, Leger and Willis. The superior
court granted summary judgment in favor of the State and the
officers. It concluded that the Estate had failed to establish
the existence of a duty which required the officers to take Day
into protective custody and thereby prohibit him from using his
car. This court affirmed the superior court's decision. Estate
of Day v. Willis, Mem. Op. & J. No. 506 (Alaska, June 6, 1990)
(Day I).
In July 1990 the Estate learned of an additional
witness, Donald Maki, who claimed to have observed Leger's
pursuit of Day.1 Maki's affidavit stated that Leger did not
disengage his pursuit of Day prior to the accident, but instead
closely followed Day's car until the accident. The Estate filed
the complaint in the present case (Day II) alleging negligent and
intentional spoliation2 of evidence against Leger and the State
of Alaska (State). The spoliation was alleged to be the result
of the State's failure in Day I to provide the name of Maki.3
The State moved for summary judgment, claiming, inter alia, that
the Estate failed to show destruction of evidence and that Alaska
does not recognize the tort of negligent spoliation. The
superior court denied the primary motion, but asked for further
briefing on the issues of causation and damages. The State
argued that the Estate was unable to show causation, because the
Estate was precluded from relitigating the issue of duty during a
pursuit. The State claimed the question of duty had been argued
in Day I and not appealed. The superior court rejected the
collateral estoppel argument. It refused to speculate how the
Estate's case may have been decided differently had it known of
Maki's testimony.4 It held that because Maki's testimony was
still available and the Estate was unable to identify any
significant prejudice or staleness in its evidence, the Estate
would have to prove that it would have prevailed in Day I in
order to recover damages for spoliation/wrongful death.
The State moved for reconsideration of the denial of
summary judgment. Before trial the superior court requested oral
argument. The court recognized that this case turned on the
issue of whether pursuing officers owe a duty to fleeing
offenders to protect them from their own actions. After oral
argument, the superior court granted summary judgment to the
State because "the absence of duty in the underlying case,
obviously, obviates the causation element in the spoliation
case." The Estate appeals.
II. DISCUSSION
A. Standard of Review
When reviewing a grant of summary judgment, this court
must determine if any genuine issue of material fact exists and
if the moving party is entitled to judgment as a matter of law.
Wright v. State, 824 P.2d 718, 720 (Alaska 1992).
Whether a pursuing officer owes a duty to a fleeing
offender is a matter of law and public policy. Therefore, this
court must "adopt the rule of law that is most persuasive in
light of precedent, reason, and policy." Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979).
B. The Estate's Spoliation Claim is Without Merit
The Estate argues that the tort of spoliation arises
from its allegation of concealment. It contends that spoliation
stands as "its own tort"and that this court does not need to
reach the elements of the underlying negligence claim.
The State contends that the Estate lost because no duty
was owed, not because of a failure to preserve evidence. It
asserts that nothing in Maki's testimony changes whether the
State owed a duty to Day.5 Additionally, the State argues that
public policy prohibits the shifting of the consequences of Day's
criminal conduct from himself to the State and its citizens. We
agree.
We are not persuaded by the Estate's claim that the
tort of spoliation can stand as "its own tort."6 An action based
on the tort of spoliation is meritless unless it can be shown
that a party's underlying cause of action has been prejudiced by
the spoliation. See Smith v. Superior Court for the County of
Los Angeles, 198 Cal. Rptr. 829, 835-37 (Cal. App. 1984)
(acknowledging that the tort of spoliation requires a showing
that the defendant reduced the "probable expectancy" of the
plaintiff's claim). This is especially so in a case such as this
where the allegedly spoliated evidence is available. Therefore,
in order for the Estate to prevail on its spoliation claim, its
underlying cause of action, which is based on negligence, must be
viable. In order to prevail on a cause of action based on
negligence it is essential that the following elements be
satisfied: (1) the defendant must have owed a duty to the
plaintiff, (2) that duty must have been breached and (3) the
injury to the plaintiff must have been proximately caused by the
breach. Larman v. Kodiak Elec. Ass'n, 514 P.2d 1275, 1279
(Alaska 1973). As discussed below, we hold that officers do not
owe a legal duty to fleeing offenders to protect them from their
own actions. Therefore, because at least one of the essential
elements of the Estate's underlying negligence claim cannot be
satisfied, its spoliation claim likewise must fail. C.
Officers do not Owe a Duty to Fleeing Offenders
To Protect Them From Their Own Actions
Whether a legal duty exists, when not governed by
statute, is a public policy question involving specified
considerations that this court enumerated in D.S.W. v. Fairbanks
N. Star Borough Sch. Dist., 628 P.2d 554, 555 (Alaska 1981).
"The foreseeability of harm to the
plaintiff, the degree of certainty that the
plaintiff suffered injury, the closeness of
the connection between the defendant's
conduct and the injury suffered, the moral
blame attached to the defendant's conduct,
the policy of preventing future harm, the
extent of the burden to the defendant and the
consequences to the community of imposing a
duty to exercise care with resulting
liability for breach, and the availability,
cost and prevalence of insurance for the risk
involved."
Id. at 555 (quoting Peter W. v. San Francisco v. Unified Sch.
Dist., 131 Cal. Rptr. 854, 859-64 (Cal. App. 1976)); see also
Busby v. Municipality of Anchorage, 741 P.2d 230, 233 (Alaska
1987) (citing D.S.W.).7
Application of these factors to the present case leads
us to the conclusion that officers do not owe a legal duty to
fleeing offenders to protect these offenders from their own
actions.
It is foreseeable that most people driving a car will
stop promptly when pursued by an officer. However, it is equally
foreseeable that some will not. An officer pursing a fleeing
offender at high speeds creates a significant risk that an
accident will occur. We assume, for purposes of discussion, that
there may be a close connection between an officer's pursuit of a
fleeing offender and fleeing offender's injury during the
pursuit.8 The State persuasively argues that despite any
possible close connection, public policy should emphasize the
blameworthiness of the fleeing offender's criminal conduct. An
officer was attempting to make a lawful stop. The offender was
unlawfully fleeing from the officer. Therefore, as stated by the
superior court, even if the officer was negligent, his negligence
"does not carry the same moral negativity as does [the fleeing
offender's] actions." It is undisputed that officers owe a legal
duty to innocent third parties who are injured during high speed
pursuits.9 The State argues that this duty is sufficient to
minimize the risk that chases will be conducted in a negligent
manner. The State further effectively asserts that adding
fleeing offenders to the zone of duty owed would "minimize [the
offender's] criminal conduct, [sic] and impede lawful police
efforts to pursue fleeing offenders. In fact, failing to pursue
could be seen as inviting future harm to innocent third-parties
by failing to attempt to take dangerous drivers off the road."
Additionally, imposing such a duty on officers could have the
effect of encouraging offenders to attempt escape. The
consequences to the community of imposing a duty are easily
ascertainable. It would be the public that would incur the cost,
because it is the State that usually will be sued. Thus, public
funds would be used to compensate a person who chose to flee from
an officer. Again, the State persuasively argues that this would
be poor public policy. Cf. Lord v. Fogcutter Bar, 813 P.2d 660,
663 (Alaska 1991) ("[c]ourts have consistently refused to aid
those whose claims are based upon their own illegal acts").
After balancing the above considerations, we conclude
that public policy and the D.S.W. factors dictate against
imposing a legal duty on officers to protect fleeing offenders
from their own actions.
III. CONCLUSION
Summary judgment was proper. Law enforcement officers
do not owe a legal duty to fleeing offenders to refrain from
pursuing them in order to protect the offenders from the
consequences of their own actions. Therefore, the judgment of
the superior court is AFFIRMED.
_______________________________
1 The following is a summary of statements made by Maki
in his affidavit:
1. Maki observed flashing police lights in his rear
view mirror.
2. Day then passed Maki going in excess of 80 m.p.h.
3. Approximately 50 to 100 yards behind Day, an
airport police car was in pursuit.
4. Day approached the horseshoe bend in Northern
Lights Boulevard and failed to maintain the road. His
vehicle began to cartwheel and was destroyed by the
accident.
5. Maki never witnessed the officer disengage from
the chase.
[R. 274]
2 "Spoliation" is the destruction or alteration of
evidence. See Black's Law Dictionary 1401 (6th ed. 1990). Some
courts -- including this court in Hazen v. Municipality of
Anchorage, 718 P.2d 456, 463-64 (Alaska 1986) -- and litigants
refer to this act as "spoilation." However, the majority of
jurisdictions and commentators use the word "spoliation." For
consistency within this opinion, we will refer to this act as
"spoliation."
3 Maki came forward to the Estate's attorneys after
reading articles about the Day case. Maki allegedly gave his
name and other identifying information to Leger at the scene. It
is undisputed that Maki gave no statement regarding his
observations. Leger denies having spoken to Maki at all.
Leger's notebook which might have contained Maki's name and
identifying information could not be located.
4 Neither party has argued the issue of collateral
estoppel to this court.
5 In Day I the dispositive issue was whether Officer
Leger owed Day a duty to take him into custody and thereby
prohibit him from using his car. In Day II, with Maki's
evidence, the issue as first presented appeared to be whether
Leger owed Day a duty to break off the chase. However, at oral
argument the Estate argued that the issue was not a duty to break
off the chase, but rather a duty to break off the chase as
conducted. The Estate presented the following theory of
negligence: Officer Leger drove the police car down into a dip
near the railway and turned off his siren. However, he did not
break off the chase. When he came out of the dip, therefore, his
car suddenly loomed into Day's view, distracting Day. The
absence of the siren, which would have announced his presence,
caused the distraction and hence the accident.
6 In Sweet v. Sisters of Providence, _____ P.2d _____,
Op. No. 4188 (April 14, 1995) we observed:
In keeping with the Smith [v. Superior
Court, 198 Cal. Rptr. 829 (Cal. Dist. App.
1984)] rationale, a number of other courts
have recognized that negligent destruction of
records may give rise to an independent tort
of spoliation. However, it is our view that,
in the present case, the remedy of burden
shifting is a sufficient response to the loss
or destruction of the records. Other courts
have reached the same conclusion. We need
not decide in this case whether the
recognition of a separate tort of negligent
destruction of evidence would ever be
appropriate, for example, against a third
party not associated with the underlying
lawsuit.
Op. No. 4188 at 19-20 (citations omitted).
7 Alaska's excessive force statute does not establish an
actionable duty of care under these circumstances. AS 12.25.070
expressly applies only to a "person arrested." Day was neither
arrested nor in custody at the time of the chase.
The Estate had asserted in Day I that a source of duty
could be derived from the defendants' internal administrative and
training manual entitled "Police and Fire, State of Alaska." The
court held that even assuming these materials were admissible as
evidence of a standard of care, they did not provide a basis for
a source of a legal duty. We agree. Furthermore, there was
evidence presented that the applicable sections were not in
effect at the time of the accident, although the court never made
a specific ruling on this issue.
Additionally, nothing in title 13, sections 02.140(c)
or 02.517(f) of the Alaska Administrative Code creates a duty to
protect fleeing offenders. Title 13, section 02.140 of the
Alaska Administrative Code establishes that all drivers need to
yield the right-of-way to an authorized emergency vehicle which
is responding to an emergency. The section further provides that
although others are to give drivers of emergency vehicles the
right-of-way, the drivers of the emergency vehicles still have a
"duty to drive with regard for the safety of all persons using
the highways." 13 AAC 02.140; see also 13 AAC 02.517(f) (also
enumerating a duty of emergency vehicle drivers to "drive with
regard for the safety of all persons"). We do not interpret
these sections as establishing a duty to protect fleeing
offenders. Rather, these provisions focus on the safety of
innocent third parties. Contra York v. Ohio State Highway
Patrol, No. 89 AP-143, 1990 WL 59279 at * 2-3 (Ohio App. May 8,
1990) (construing a similar statute as establishing a duty to
protect pursued motorists but conceding that a person
intentionally attempting to escape from the police to avoid
arrest for his own misconduct cannot recover from the state for
injuries sustained as a result of his own misconduct during the
attempted escape; the speeder's negligence is the "overwhelming
proximate cause") aff'd 573 N.E.2d 163 (Ohio 1991), reh'g denied
574 N.E.2d 1043 (Ohio 1991).
8 However, we need not address the State's assertion that
in this case, "it is questionable whether there was even a
factual closeness since Day began driving drunk and speeding
before . . . Leger began to pursue him." See Kimber v. City of
Warrenville, 617 N.E. 2d 1263, 1269 (Ill. App. 1993) (holding
that "even assuming arguendo that [the officer acted negligently
in failing to abandon pursuit of the intoxicated motorist], such
negligence would be too remote to be considered a proximate cause
of [the pursued's death]") appeal denied, 624 N.E.2d 808 (Ill.
1993).
9 For a listing and summary of cases on the issue of duty
owed by pursuing police to innocent third parties who are struck
by the fleeing offender, see Boyer v. State, 594 A.2d 121, 135-36
(Md. 1991); see also Hildebrandt v. City of Fairbanks, 863 P.2d
240, 242-243 (Alaska 1993) (holding an officer comparatively
negligent for injuries caused to a third party during a high
speed pursuit).
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