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Ardinger v. Hummell (7/23/99) sp-5141
<![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, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
SHERIE ARDINGER, Individually )
and as Personal Representative ) Supreme Court Nos. S-8184/8214
of the Estate of Joshua )
Nathaniel Van Bavel, ) Superior Court No.
) 3KO-96-196 CI
Appellant and )
Cross-Appellee, ) O P I N I O N
)
v. ) [No. 5141 - July 23, 1999]
)
NORMANDY J. HUMMELL, )
)
Appellee and )
Cross-Appellant. )
_______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kodiak,
Donald D. Hopwood, Judge.
Appearances: Brett von Gemmingen, Anchorage,
for Appellant/Cross-Appellee. Clayton Luke
and Robert L. Richmond, Richmond & Quinn,
Anchorage, for Appellee/Cross-Appellant.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
FABE, Justice.
I. INTRODUCTION
Fifteen-year-old Joshua Van Bavel was killed when the car
he was driving hit a utility pole. Joshua's mother, Sherie
Ardinger, sued fourteen-year-old Normandy Hummell for negligent
entrustment. The jury found that Normandy was not liable.
Ardinger appeals on several grounds, and Normandy cross-appeals.
Because we conclude that the superior court erroneously instructed
the jury on the elements of negligent entrustment, we reverse and
remand for a new trial.
II. FACTS AND PROCEEDINGS
This appeal arises out of a fatal automobile accident in
Kodiak on December 5, 1993. On the afternoon of December 4 several
teenagers, including Joshua Van Bavel, age fifteen, and Normandy
Hummell, age fourteen, agreed to meet later that night, after their
parents were asleep, to drive around together. At approximately
1:30 or 2:00 a.m., Normandy took her mother's car keys without her
mother's knowledge or permission, pushed the car down the driveway
with a friend, Christina Kilborn, and drove to Joshua's house. The
roads were icy, and Normandy had trouble handling the car. The
girls found their friends, David Lakings and Joshua, at Joshua's
mother's house and asked whether the boys wanted to go out as
planned.
According to the testimony of Christina and David,
Normandy was scared of driving and at first asked Joshua to drive
her home so that she and Joshua could wait for David to pick them
up in David's mother's vehicle. But on the way to the car,
Normandy insisted that she wanted to drive. She and Joshua argued
about who should drive. The keys were already in the ignition, and
Joshua got into the driver's seat, which he refused to relinquish.
While Joshua and Normandy continued to argue, Joshua drove the
four teenagers to David's house where David and Christina stayed.
Coast Guard security officers spotted Joshua and Normandy
as they continued on to Normandy's house. The officers observed
the car lurching at a stop sign, as if the driver were having
trouble with the clutch, and they decided to perform a welfare
check to "make sure everything [was] okay." The officers turned on
their vehicle's blue flashing lights. As one of the officers
approached Normandy's mother's car on foot, Joshua sped away. The
officer estimated that Joshua accelerated to a speed of seventy
miles per hour. Joshua lost control of the car and collided with
a utility pole. The collision caused his death.
Joshua's mother, Sherie Ardinger, as personal
representative of her son's estate, filed a complaint against
Normandy and her mother, Pamela Hummell, on December 4, 1995. She
claimed that Normandy permitted Joshua to drive and that "[a]s the
direct and proximate result of the acts, omissions, intentional
and/or reckless conduct of [Normandy and Pamela], Joshua . . . was
allowed to operate a motor vehicle which resulted in his death."
Normandy moved for summary judgment, arguing in part that Ardinger
should be foreclosed from seeking relief because Joshua's own
criminal conduct caused his death. Ardinger moved for summary
judgment, arguing that Normandy was negligent as a matter of law
and that she was engaged in an adult activity and should therefore
be held to an adult standard of care. The superior court denied
all of the motions. On April 18, 1997, Ardinger moved to amend the
complaint to add herself as a party in an individual capacity so
that she could assert claims for loss of consortium and society.
The superior court granted the motion on the eve of trial, April
22, 1997.
The case proceeded to trial on April 23, 1997. The jury
found that Normandy did not negligently entrust her mother's car to
Joshua and that Pamela Hummell was not negligent. The court
entered judgment in favor of Normandy and Pamela and awarded them
costs and attorney's fees. Ardinger appeals the judgment in favor
of Normandy, and Normandy cross-appeals.
III. DISCUSSION
Ardinger contends (1) that Normandy should have been held
to an adult standard of care, (2) that Ardinger was entitled to a
jury instruction on a simple negligence claim rather than on a
claim of negligent entrustment, (3) that the negligent entrustment
jury instruction was flawed, and (4) that Normandy was negligent as
a matter of law in letting Joshua drive. Normandy cross-appeals,
maintaining (1) that Joshua should have been barred from seeking
damages because he was engaged in criminal conduct at the time of
the accident, (2) that Ardinger should not have been allowed to be
added as a plaintiff in her individual capacity on the eve of
trial, and (3) that Normandy was entitled to a directed verdict on
negligent entrustment.
A. Standard of Review
The parties raise several questions of law. We review
questions of law de novo and will "adopt the rule of law that is
most persuasive in light of precedent, reason, and policy."1
Both parties also appeal the superior court's denial of
motions for summary judgment. "In reviewing a grant or denial of
summary judgment, we must determine whether any genuine issues of
material fact exist, and whether the moving party is entitled to
judgment as a matter of law."2 "The moving party bears the burden
of demonstrating that there is no dispute as to any issue of
material fact. All reasonable inferences of fact are drawn in
favor of the nonmoving party."3
B. Ardinger's Appeal
1. Standard of care
Ardinger contends that Normandy should have been held to
an adult standard of care. Before trial the superior court denied
Ardinger's motion for summary judgment on this issue, reasoning
that Normandy "was not engaging in a uniquely adult activity when
she permitted Joshua Van Bavel to drive the car." Accordingly, the
court instructed the jury to decide whether Normandy used the
reasonable care "ordinarily used by children of the same age,
intelligence, knowledge, and experience in circumstances similar to
those shown by the evidence."
The superior court's instruction reflected the general
rule expressed by the Restatement (Second) of Torts that children
should be held to the standard of care of a reasonable person of
the same "age, intelligence, and experience under like
circumstances."4 The rationale for holding children to a special
standard of care derives from "the public interest in their welfare
and protection."5 As one court has explained, "the child's
standard was created because public policy dictates that it would
be unfair to predicate legal fault upon a standard most children
are incapable of meeting."6
But an exception to the rule "may arise where the child
engages in an activity which is normally undertaken only by adults,
and for which adult qualifications are required."7 For example, if
a child drives a car, age and inexperience may not excuse the child
from liability for driving in a negligent manner.8 According to
Prosser and Keeton on the Law of Torts, it "is now quite generally
accepted, that whenever a child . . . engages in an activity which
is normally one for adults only, such as driving an automobile or
flying an airplane, . . . the child must be held to the adult
standard."9
Mindful of this exception to the rule, Ardinger argues
that Normandy engaged in adult activities by taking possession of,
operating, and permitting Joshua to operate her mother's car. We
agree.
Under Alaska law, exercising physical control of a motor
vehicle on a roadway is an adult activity requiring a driver's
license.10 Alaska law recognizes that operating a motor vehicle
includes exercising dominion over or physical control of a motor
vehicle just as it includes driving a motor vehicle.11 Children who
physically control vehicles must, for public safety reasons, be
held to an adult standard of care.
In this case it is undisputed that Normandy had physical
possession and control of the car when she allegedly allowed Joshua
to drive. She took the keys from her mother; she drove the car to
Joshua's house, where, assuming entrustment, she transferred
physical control of the vehicle to Joshua. From the moment she
assumed control of the car, any decisions she made as to the
exercise and relinquishment of that control should be evaluated
under an adult standard.
We therefore conclude that Normandy engaged in adult
conduct by taking control of the car. Her ability to entrust the
car to Joshua necessarily stemmed from her exertion of actual
possession and control over the vehicle. Thus, the jury should
have been instructed that if Normandy entrusted the vehicle to
Joshua, her actions should be evaluated under an adult standard of
care. Failure to instruct the jury in this manner was reversible
error.
2. Negligence instruction
Ardinger claims that the superior court erred by failing
to give a "simple negligence,"as opposed to a negligent
entrustment, jury instruction. Specifically, she maintains that
negligently entrusting a vehicle to someone differs from negligent
entrustment. In clarifying this alleged distinction, she insists
that negligent entrustment necessarily "involves harm to a third
party,"while negligently entrusting a vehicle to an unlicensed
driver does not. Thus, she contends that the latter tort
represents an independent act of negligence. We reject this
argument for two reasons.
First, from the outset of this litigation, Ardinger's
stated cause of action against Normandy was for negligent
entrustment. The only allegations against Normandy in the
complaint are that she permitted Joshua to drive her mother's car
and that Joshua was allowed to operate the car. Similarly, when
the superior court asked Ardinger to specify the type of negligence
claim she planned to assert at trial, she responded that the claim
against Normandy was for "[n]egligent furnishing of a vehicle to an
unlicensed driver." In our view, these claims can only reasonably
be understood as negligent entrustment.
Second, Ardinger's distinction between negligent
entrustment and an independent act of negligence for entrusting a
vehicle does not withstand scrutiny. Neither our decisions nor
other authorities consider such a distinction.12 Whether the danger
or harm is to the entrustee or to a third party, the tort is the
same -- negligent entrustment.
3. Negligent entrustment instruction
Ardinger asserts that the superior court incorrectly
stated the legal elements of negligent entrustment to the jury.
She objects to three elements of the instruction, which we consider
in turn.
The court instructed the jury on negligent entrustment as
follows:
Plaintiff claims that Normandy Hummell was
negligent because she negligently entrusted
Pamela Hummell's vehicle to decedent Joshua
Van Bavel. In order for you to find that
Normandy was negligent, you must find each of
the following is more likely than not true:
1. that she was the owner of the vehicle or
in control of the vehicle and responsible for
its use;
2. that she willingly entrusted the car to
decedent Joshua Van Bavel;
3. that she knew or should have known that
the decedent was an incompetent or unfit
driver; and
4. that she was directing the operation or
participating in the operation of the vehicle
at the time of the accident.
Even if you find the car was entrusted to a
driver for limited purposes, this does not
mean that the car was entrusted for all
purposes, or that it continued to be entrusted
to the driver at the time of the accident.
Ardinger first challenges the phrase "responsible for its
use,"claiming that it is potentially misleading. This argument is
without merit. Our recent description of negligent entrustment in
Neary v. McDonald 13 employed this very phrase; we explained that
"the owner or other person in control of a vehicle and responsible
for its use who is negligent in knowingly supplying, entrusting,
permitting or lending it to an incompetent or habitually careless
driver is liable for negligent entrustment."14
Ardinger next contests the phrase "willingly entrusted."
She contends that a proper instruction would instead have stated
that Normandy was "liable for negligent entrustment if she
expressly or impliedly permitted"Joshua to drive the car. She
claims that use of "willingly entrusted"failed to convey to the
jury that it could consider whether Normandy impliedly gave Joshua
permission to drive. But the phrase "willingly entrusted"conveys
the same general meaning as "knowingly suppl[ied], entrust[ed],
permitt[ed], or len[t],"as stated in Neary.15 Both phrases suggest
that one person voluntarily allowed another to operate a car.
Furthermore, Ardinger's argument notwithstanding, one could in fact
impliedly willingly entrust a vehicle to someone else. We
therefore reject this claim.
Finally, Ardinger objects to part (4) of the instruction,
which states that the jury must find that Normandy was "directing
the operation or participating in the operation of the vehicle at
the time of the accident." She contends that part (4) was a
"glaring legal error"because the theory of negligent entrustment
does not require the direct participation of the entrustor.16 We
agree. Our previous decisions in no way suggest that liability for
negligent entrustment requires a finding that the entrustor
directed or participated in the operation of the vehicle.17
Similarly, our review of other authorities uncovers no such
requirement.18
Normandy nevertheless defends the instruction,
maintaining that "negligent entrustment is a tort based on
principles of agency"and that a minor will not be held liable for
negligent acts of her agents "unless those acts are ratified by the
minor." This analysis is misguided because it conflates the
theories of negligent entrustment and joint enterprise. Although
a party's direction or participation in the operation of a vehicle
may be a necessary component of a joint enterprise claim, it has no
relevance to an allegation of negligent entrustment. Negligent
entrustment "is an independent cause of action against the owner
and is not dependent on theories of agency, joint venture, or other
forms of vicarious liability."19 It simply does not require a
finding that the entrustor directed or participated in the
operation of the vehicle. We therefore conclude that it was error
to include part (4) of the negligent entrustment instruction.
Given this conclusion, we must consider Normandy's
contention that any flaw in part (4) of the jury instruction is
harmless. The harmless error standard "requires that the court put
itself as nearly as possible in the position of the jurors"to
decide whether the error affected the verdict.20 "The fundamental
test of the courts is to determine whether substantial rights of
the parties were affected or the error had substantial influence."21
"An erroneous statement of law will not constitute reversible
error unless it prejudiced one of the parties. An erroneous
instruction is prejudicial if it can be said that the verdict may
have been different had the erroneous instruction not been given."22
In this case, we cannot say that the erroneous portion of
the instruction did not have a substantial influence on the jury's
verdict. In closing argument, both sides argued about whether
Normandy was directing or participating in the operation of the
vehicle. It is entirely conceivable that the jury found that the
first three parts of the instruction were met, but that Normandy
was not directing or participating in the operation of the car.
The verdict may have been different had the erroneous instruction
not been given. Thus, we hold that giving part (4) of the jury
instruction on negligent entrustment was reversible error.
4. Negligence per se
The negligence per se doctrine provides that a person who
indisputably violates a statute must be found negligent.23 Ardinger
argues that the superior court should have found Normandy negligent
per se because she allowed an unlicensed driver to operate a car
under her control in violation of AS 28.15.281(b), which provides:
A person may not authorize or knowingly permit
a motor vehicle owned by the person or under
the control of the person to be driven in this
state by a person who is not validly licensed.
As an initial matter, it is unclear whether Ardinger
seeks review of (a) the court's denial of her summary judgment
motion to hold Normandy negligent per se, or (b) the court's
failure to give a negligence per se jury instruction. We address
both arguments.
Where reasonable minds can draw different inferences and
reach different conclusions from the facts, summary judgment is not
appropriate.24 In this case, the factual question of whether
Normandy allowed Joshua to drive was contested. Normandy,
Christina, and David all testified that Normandy argued with Joshua
about who should drive. Collectively, they described how Joshua
took control of the driver's seat and refused to relinquish it.
Their testimony suggests that Normandy may not have authorized or
permitted Joshua to drive. Indeed, throughout this litigation the
parties vigorously disagreed about whether Normandy authorized or
knowingly permitted Joshua to drive. Because a legitimate factual
dispute existed, we conclude that the trial court's denial of
summary judgment on the issue of whether Normandy was negligent per
se was not error.
Ardinger also implies that the court erred by rejecting
her proposed jury instruction that Normandy be found negligent per
se if she violated AS 28.15.281(b). We agree with this contention.
And although the majority of courts and the scholarly commentators
endorse the view that negligence per se does not apply to children
because it essentially imposes strict liability, leaving no room
for consideration of a child's age, intelligence, and experience,
we have determined that Normandy should be held to an adult
standard of care in this case.25 Thus, the court's failure to
instruct the jury on negligence per se was error.26
C. Normandy's Cross-Appeal
Because we conclude that the court's erroneous
instructions warrant a remand, we must consider Normandy's three
arguments on cross-appeal.
1. Public policy bar against recovery
Normandy moved for summary judgment on the theory that
public policy barred Ardinger from seeking recovery for harm
arising out of Joshua's criminal conduct,27 but the superior court
denied the motion. Normandy appeals, maintaining that Joshua
violated former AS 11.46.482(a)(4) by driving a car without its
owner's permission and damaging it,28 and that "public policy
precludes an action in tort for damages arising out of one's
criminal misconduct."29
It is well established that "one who violates a criminal
statute is not deprived of all protection against the torts of
others."30 The fact that an individual was engaged in unlawful
conduct when injured is not, by itself, enough to bar recovery.31
Absent a causal connection between the injured party's unlawful
conduct and her injuries, her unlawful conduct does not bar her
from seeking relief from the negligent party who caused her
injuries.32 For example, if an individual is injured in an
automobile accident as a result of another's negligence, she is not
barred from bringing an action against the negligent party merely
because she was carrying contraband goods at the time of the
accident.33
But there is a public policy exception to this rule:
"[I]f the injured person has violated a statute designed to prevent
a certain type of risk, he is barred from recovery for harm caused
by violation of the statute if, but only if, the harm resulted from
a risk of the type against which the statute was intended to give
protection."34
We have "recognized the public policy principle which
precludes a person who has been convicted of a crime from imposing
liability on others for the consequences of that antisocial
conduct."35 In Adkinson v. Rossi Arms Co.,36 we held that an
assailant convicted of manslaughter for shooting and killing his
victim was barred from recovering from the manufacturer or seller
of the gun for direct personal losses allegedly resulting from the
shooting.37 We reasoned that allowing the assailant to recover
would compensate him for an intentional homicide and undermine the
values of criminal justice:
Finding that [the manufacturer and seller of
the gun] owed a duty to the [assailant] would
tend to denigrate [the assailant's] personal
responsibility for his criminal conduct and
would have the effect of compensating [him]
for the consequences of an intentional
homicide, ultimately [transferring] the costs
involved to the public.
Furthermore, allowing a criminal
defendant, who has been convicted of an
intentional killing, to impose liability on
others for the consequences of his own anti-
social conduct runs counter to basic values
underlying our criminal justice system.[38]
In subsequent decisions, we have reiterated the public policy
principle, explaining that it "precludes recovery at the very
threshold of the plaintiff's application for judicial relief."39
The public policy bar also operates as an exception to
our comparative negligence regime, under which liability is
allocated in proportion to each party's fault.40 In adopting
comparative negligence, we abandoned contributory negligence, which
placed the entire burden of a loss on one party, and failed to
distribute responsibility in proportion to fault.41 Yet, in those
cases in which recovery is barred on public policy grounds, the
result mirrors the outcome of the abandoned contributory negligence
rule: Responsibility is not necessarily allocated in proportion to
fault, and one party is exempted from liability altogether.42 It
is therefore only with considerable prudence that we invoke the
public policy bar against recovery. Accordingly, we have applied
the public policy rationale for barring recovery only in cases
involving serious criminal conduct that intentionally threatened
the safety of others, such as homicide, rape, and arson.43
Other courts have adopted this restrained application of
the public policy bar. In Barker v. Kallash,44 the court restricted
the reach of the principle to cases involving serious offenders.45
In precluding a fifteen-year-old plaintiff who was injured while
constructing a bomb from seeking relief from the nine-year-old who
sold him firecrackers used to make the bomb, the New York Court of
Appeals conceded that "not every violation of the law, no matter
how petty or slight, will serve to completely resolve a question of
tort liability."46 The court emphasized that public policy
foreclosed recovery only where a plaintiff's injuries "were a
direct result of a serious violation of the law involving hazardous
activities which were not justified under the circumstances."47
The offense on which Normandy relies cannot reasonably be
equated with crimes such as homicide, rape, and arson for purposes
of barring recovery on public policy grounds. Normandy's public
policy argument is based solely on the claim that Joshua
violated former AS 11.46.482(a)(4) by driving a car
without its owner's permission. Such a violation does
not represent the level of serious criminal conduct
generally necessary to bar recovery.48 Moreover, the harm
to Joshua did not clearly result "from a risk of the type
against which [former AS 11.46.482(a)(4)] was intended to
give protection."49 That statutory provision, which was
included in the chapter of our criminal laws defining
offenses against property, was designed to prevent theft
and the consequent harm to property. The harm in this
case was not directly caused by the act of theft. The
causal nexus between Joshua's violation of the statute
and his death is therefore tenuous. We thus conclude
that public policy does not prevent Ardinger from seeking
recovery against Normandy.
2. Ardinger as a plaintiff in her individual
capacity
Normandy next argues that the superior court
erred by allowing Ardinger to "join the lawsuit on the
eve of trial and long after the statute of limitations
had run." Ardinger originally brought suit solely in her
capacity as the representative of Joshua's estate within
the two-year period required by AS 09.10.070. On April
22, 1997, the day before jury selection was to begin, the
superior court granted Ardinger's motion to amend the
complaint to add herself in her individual capacity as a
plaintiff. The court noted that Normandy had referred in
pleadings to "plaintiff's loss of society claim,"had
acknowledged that Ardinger was "almost certainly claiming
damages"for pain and suffering in her individual
capacity, and had investigated Ardinger's individual loss
of society claim. It therefore concluded that "[b]ecause
the defendants were aware of Ardinger's individual loss
of society claim as early as December 13, 1996; conducted
discovery for that claim; submitted jury instructions
related, in part, to that claim; and are prepared to
defend that claim at trial, the amendment sought by
Ardinger should be permitted." The court further
concluded that the individual claims related back to the
date of the original pleading. Normandy contends,
however, that although she "referenced"Ardinger's
potential claim twice in pleadings, she was not prepared
to oppose the claim.
Alaska Civil Rule 15 governs amendments of
pleadings. It provides that courts shall freely allow
parties to amend pleadings when justice requires:
(a) . . . [A] party may amend the
party's pleading only by leave of court
or by written consent of the adverse
party; and leave shall be freely given
when justice so requires.
. . . .
(c) Whenever the claim or defense
asserted in the amended pleading arose
out of the conduct, transaction or
occurrence set forth or attempted to be
set forth in the original pleading, the
amendment relates back to the date of
the original pleading.
The superior court has broad discretion to allow
amendment of pleadings.50 "Leave to amend under Rule 15,
subsection (a) has traditionally been freely given,"51 and
relation back under subsection (c) is liberally
construed.52 As we stated in Farmer v. State,53 "the
touchstone of the relation back doctrine is fairness."54
We conclude that the superior court did not
abuse its discretion in allowing Ardinger to amend the
complaint. Ardinger's individual claims are based on the
same conduct relied upon in the complaint. As the
superior court concluded, the record discloses that
Normandy was aware of Ardinger's individual claims and
had prepared for them at least to some degree. Moreover,
on remand, Normandy will have ample time to prepare a
defense against Ardinger's claims in her individual
capacity.
3. Motion for directed verdict
Finally, Normandy contends that she was entitled
to a directed verdict because it was undisputed that she
did not willingly entrust the car to Joshua. The
superior court denied her motion to this effect at the
close of evidence. Because there was a legitimate
factual dispute about whether Normandy permitted Joshua
to drive the car, we conclude that a directed verdict
would have been premature.55 Whether Normandy willingly
entrusted the car to Joshua was a factual dispute
properly left for the jury to decide.
IV. CONCLUSION
We conclude that the superior court committed
reversible error in its instructions on the standard of
care, negligence per se, and negligent entrustment.
Accordingly, we REVERSE and REMAND to the superior court.
Footnotes:
1 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979); see also Manes v. Coats, 941 P.2d 120, 125 (Alaska
1997) ("Jury instructions to which a timely objection is
made are subject to de novo review.").
2 Willner's Fuel Distribs., Inc. v. Noreen, 882
P.2d 399, 403 n.7 (Alaska 1994).
3 Andrews v. Wade & De Young, Inc., 950 P.2d 574,
575 (Alaska 1997) (citation omitted).
4 Restatement (Second) of Torts § 283A (1965).
5 Id. cmt. b.
6 Bauman v. Crawford, 704 P.2d 1181, 1184 (Wash.
1985).
7 Restatement (Second) of Torts § 283A cmt. c
(1965).
8 See id.
9 W. Page Keeton et al., Prosser and Keeton on the
Law of Torts § 32, at 181 (5th ed. 1984) (footnotes
omitted); see also Summerill v. Shipley, 890 P.2d 1042,
1044-46 (Utah App. 1995) (compiling authority and stating
that teen driver must conform to adult standard of care).
10 See AS 28.15.011(b).
11 See, e.g., State, Dep't of Public Safety v.
Conley, 754 P.2d 232, 236 (Alaska 1988); Jacobson v.
State, 551 P.2d 935, 937 (Alaska 1976).
12 See Neary v. McDonald, 956 P.2d 1205, 1208
(Alaska 1998); Providence Wash. Ins. Co. of Alaska v.
McGee, 764 P.2d 712, 715 (Alaska 1988); Flieger v.
Barcia, 674 P.2d 299, 301 (Alaska 1983); see also
Restatement (Second) of Torts § 390 (1965).
13 956 P.2d 1205 (Alaska 1998).
14 Id. at 1208; see also Flieger, 674 P.2d at 301
(quoting "responsible for its use"language approvingly).
15 Cf. Nautilus Marine Enters., Inc. v. Valdez
Fisheries Dev. Ass'n, 943 P.2d 1201, 1204 (Alaska 1997)
(affirming jury instruction that conveyed "substantially
the same"meaning as statute).
16 We note that Ardinger properly objected in the
superior court to this portion of the jury instruction
and therefore preserved this issue for appeal. See
Alaska Civil Rule 51(a).
17 See Neary, 956 P.2d at 1208-12.
18 See, e.g., Restatement (Second) of Torts § 390
(1965) (stating that one who supplies a chattel for the
use of another, knowing the risk of harm, is subject to
liability); Karen L. Ellmore, Annotation, Negligent
Entrustment of Motor Vehicle to Unlicensed Driver, 55
A.L.R. 4th 1100, 1114-20 (1987) (setting forth elements
necessary to find liability for negligent entrustment).
19 Ellmore, supra, at 1106.
20 Vincent v. Fairbanks Mem'l Hosp., 862 P.2d 847,
853 n.11 (Alaska 1993).
21 Id. (citation omitted).
22 Beck v. State, Dep't of Transp. & Pub.
Facilities, 837 P.2d 105, 114 (Alaska 1992).
23 See, e.g., Ferrell v. Baxter, 484 P.2d 250, 257-
58 (Alaska 1971) ("The violation of either an applicable
traffic statute or regulation which has been adopted by
the court as a standard of reasonable behavior is
negligence per se."); Keeton, supra, § 36, at 229-30.
24 See Neary, 956 P.2d at 1212.
25 See, e.g., Bauman v. Crawford, 704 P.2d 1181,
1184-85 (Wash. 1985); Rosenau v. City of Estherville, 199
N.W.2d 125, 129 (Iowa 1972).
26 Ardinger also alleges that the superior court
improperly instructed the jury on the method of
calculating loss to Joshua's estate. She asks us to
order the superior court on remand to hold an evidentiary
hearing on this issue. Because Ardinger did not request
such a hearing below, we do not address the merits of her
argument. See Williams v. Alyeska Pipeline Serv. Co.,
650 P.2d 343, 351 (Alaska 1982) (stating that this court
will not consider on appeal an argument not raised before
the trial court). We note, however, that on remand she
is free to request a hearing on the method of calculating
loss to Joshua's estate.
27 Although Normandy presents a public policy
argument, AS 09.65.210 states:
A person who suffers personal injury or
death may not recover damages for the
personal injury or death if the injuries
or death occurred while the person was
engaged in the commission of a felony,
the person has been convicted of the
felony, including conviction based on a
guilty plea or plea of nolo contendere,
and the felony substantially contributed
to the injury or death. This section
does not affect a right of action under
42 U.S.C. 1983.
We note an anomaly in the statute: A person who suffers
death may be barred from recovering damages only if the
person has been convicted of the underlying felony.
Thus, by its terms, the statute ensures that a person who
suffers death will never be barred from recovery.
28 Former AS 11.46.482(a)(4), which was in effect at
the time of the accident, provided:
(a) A person commits the crime of
criminal mischief in the second degree
if, having no right to do so or any
reasonable ground to believe the person
has such right,
. . . .
(4) the person drives, tows away, or
takes the propelled vehicle of another
and the vehicle or any other property of
another is damaged, or the owner incurs
reasonable expenses as a result of the
loss of use of the vehicle, in a total
amount of $500 or more.
This offense is now codified at AS 11.46.360(a)(2).
29 Normandy also notes without further explanation
that "Joshua's conduct was compounded by the fact that he
was driving without a license, a misdemeanor." But
absent a causal connection between the lack of a license
and the resulting injuries, operation of a vehicle
without a license does not preclude recovery. See 8 Am.
Jur. 2d Automobiles and Highway Traffic § 813 (1997 &
Supp. 1998); 60 C.J.S. Motor Vehicles § 163 (1969 & Supp.
1998). Normandy alleges no such connection.
30 Keeton, supra, § 36, at 232.
31 See Restatement (Second) of Torts § 889 cmt. b
(1979).
32 See 74 Am. Jur. 2d Torts § 46 (1974 & Supp.
1998); 1A C.J.S. Actions § 30 (1985 & Supp. 1998); 60
C.J.S. Motor Vehicles § 163 (1969 & Supp. 1998).
33 See Restatement (Second) of Torts § 889 cmt. b,
illus. 3; see also Barker v. Kallash, 468 N.E.2d 39, 41
(N.Y. 1984) (stating that if a plaintiff had been injured
in an automobile accident as a result of another's
negligence, she is not barred from bringing an action
merely because she was on the way to have an illegal
abortion performed).
34 Restatement (Second) of Torts § 889 cmt. b.
35 Burcina v. City of Ketchikan, 902 P.2d 817, 820
(Alaska 1995).
36 659 P.2d 1236 (Alaska 1983).
37 See id. at 1240.
38 Id. (footnote omitted).
39 Lord v. Fogcutter Bar, 813 P.2d 660, 663 (Alaska
1991) (quotation and citation omitted).
40 See Kaatz v. State, 540 P.2d 1037, 1049 (Alaska
1975) (adopting comparative negligence); AS 09.17.060
(codifying comparative negligence).
41 See Kaatz, 540 P.2d at 1047.
42 See, e.g., Flanagan v. Baker, 621 N.E.2d 1190,
1193 (Mass. App. 1993) (declining to apply public policy
bar because it "would itself offend a countervailing
public policy to the extent it could also protect from
possible liability those persons [who were also at
fault]").
43 See, e.g., Burcina, 902 P.2d at 820-21 (arson);
Lord, 813 P.2d at 662 (kidnapping and rape); Adkinson,
659 P.2d at 1240 (manslaughter). But see Beilgard v.
State, 896 P.2d 230, 234 (Alaska 1995) (applying public
policy bar where plaintiff pled no contest to non-
felonious conduct and claimed state was liable for
omissions that allegedly caused plaintiff to violate
state law).
44 468 N.E.2d 39 (N.Y. 1984).
45 See id. at 41-42.
46 Id. at 42.
47 Id.
48 But see Manning v. Brown, 689 N.E.2d 1382, 1384-
85 (N.Y. 1997) (holding that joyriding constituted a
serious offense for purpose of public policy analysis);
Lee v. Nationwide Mut. Ins. Co., 497 S.E.2d 328, 330-31
(Va. 1998) (holding that injured minor could not recover
from other minor where injured minor participated in
illegal acts).
49 Restatement (Second) of Torts § 889 cmt. b.
50 See Revelle v. Marston, 898 P.2d 917, 928 (Alaska
1995).
51 Magestro v. State, 785 P.2d 1211, 1212 (Alaska
1990).
52 See Farmer v. State, 788 P.2d 43, 48 n.13 (Alaska
1990); Magestro, 785 P.2d at 1213.
53 788 P.2d 43 (Alaska 1990).
54 Id. at 47.
55 A directed verdict is appropriate only if "the
evidence, when viewed in the light most favorable to the
non-moving party, is such that reasonable [persons] could
not differ in their judgment." See Van Sandt v. Brown,
944 P.2d 449, 451 (Alaska 1997) (citation omitted).
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