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Fancyboy v. Alaska Village Electric Cooperative Inc. (8/13/99) sp-5153
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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
KATHY FANCYBOY, Personal )
Representative of Willie ) Supreme Court Nos. S-8491/8552
Fancyboy, Deceased, and )
Guardian of Todd Fancyboy, a ) Superior Court No.
minor, and RAYMOND FANCYBOY, ) 4BE-94-97 CI
)
Appellants and ) O P I N I O N
Cross-Appellees, )
) [No. 5153 - August 13, 1999]
v. )
)
ALASKA VILLAGE ELECTRIC )
COOPERATIVE, INC., )
)
Appellee and )
Cross-Appellant. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Bethel,
Mary E. Greene, Judge.
Appearances: Susan Orlansky and Jeffrey M.
Feldman, Feldman & Orlansky, Anchorage, for Appellants and Cross-
Appellees. Donald C. Ellis, Kemppel, Huffman & Ellis, P.C.,
Anchorage, and Christopher R. Cooke, Hedland, Brennan, Heideman &
Cooke, P.C., Bethel, for Appellee and Cross-Appellant.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, and Bryner, Justices. [Carpeneti, Justice, not
participating.]
FABE, Justice.
I. INTRODUCTION
This appeal involves a fire that destroyed the Fancyboy
family home in Pilot Station. One of the Fancyboy children was
killed in the fire and two other family members were injured. The
Fancyboys sued Alaska Village Electric Cooperative, Inc. (AVEC) for
negligence. Although a jury found AVEC partially liable,
allocating forty percent of fault to AVEC and sixty percent of
fault to the father, Raymond Fancyboy, it only awarded the
Fancyboys property damages. The trial court found that the jury's
failure to award at least stipulated medical expenses was
inconsistent with its finding that AVEC was partially liable.
After the jury deliberated further, it rendered a second verdict
that included the stipulated medical expenses.
The Fancyboys appeal, claiming that AS 09.17.080 does not
permit the trial court to reduce the verdict by the percentage of
fault allocated to Raymond. They further argue that the second
jury verdict was inconsistent in its failure to make any award for
non-economic damages. AVEC cross-appeals, arguing that the trial
court erred in failing to reinstate the original verdict. Because
we conclude that both the original and amended jury verdicts were
inconsistent, we reverse and remand for a new trial.
II. FACTS AND PROCEEDINGS
Raymond and Kathy Fancyboy and their children moved to
Pilot Station in the spring of 1992. Soon after their arrival,
they bought a small home next to Kathy's mother's house. When the
family moved into the house, it did not have electrical service
because AVEC, which provides electricity to Pilot Station, had not
connected the Fancyboy home to its distribution system. [Fn. 1]
Raymond claims that in early 1992 he contacted the local
AVEC representative, Tom Heckman, about obtaining service for his
new home. Heckman allegedly told Raymond that no one from AVEC
could come to Pilot Station to install an overhead line for several
months. Raymond maintains that Heckman recommended that the
Fancyboys run a jump line [Fn. 2] from another meter box to their
house and that Raymond contact Wayne Francis, a former AVEC
employee, for assistance with this project. Heckman denies having
this conversation.
Kathy's mother agreed to let the Fancyboys run a jump
line from her meter box to their house until AVEC could install an
overhead power line. Raymond then spliced two pieces of wire
together and ran the line from his mother-in-law's house to his
home, a distance of approximately seventy-five feet. In doing so,
Raymond used white Romex cable, a common interior house wire that
can handle only limited voltage.
Wayne Francis, who had installed jump lines before,
helped Raymond by connecting the wires from the meter box at
Raymond's mother-in-law's house to the Fancyboy home. Francis
warned Raymond not to run too many appliances off the Romex wire.
Francis also connected each end of the cable to a circuit breaker
and told Raymond that the breaker would trip if the wire were
overloaded. Heckman, the AVEC representative, admitted knowing
that a jump line ran from Kathy's mother's house to the Fancyboy
home and that the type of wire used was potentially dangerous.
After Francis completed the connection, the Fancyboy home
appeared to receive enough electricity. At first, the Fancyboys
needed electricity only for basic lighting, a stereo, and a
television. Later in the summer, the Fancyboys bought a small
refrigerator, a washing machine, and a freezer. When they used
several appliances at once, the circuit breaker would occasionally
trip, and Raymond would reset the breaker at his mother-in-law's
house.
Pregnant with the Fancyboys' fourth child, Kathy left
Pilot Station in early August to stay at the Bethel Prematernal
Home. During her absence, Raymond cared for the other three
children: Janan, age five; Willie, age three; and Todd, age two. On
September 24, 1992, Raymond took Janan to school. On the way home
with his two sons, Raymond stopped at his brother-in-law's house,
where he drank "about six, eight-ounce cups"of beer. After
Raymond and the boys returned home, all three settled on the couch
to watch cartoons. Raymond fell asleep and awoke to smoke,
pounding on the wall, and the boys' cries. Raymond located Todd
and passed him out of a window to one of the villagers. Because of
the smoke and heat, he could not find Willie and had to leave the
house through a window. As Willie cried from inside the house,
Raymond tried to reenter the house, but his neighbors held him
back. The house burned to the ground in less than forty-five
minutes.
Willie died in the fire. Todd experienced third-degree
burns on his scalp, forehead, chin, neck, hands, and lower back.
Raymond suffered pneumonia from smoke inhalation and burns on his
right hand and lower back.
Because the Fancyboys' house burned to the ground,
little physical evidence existed from which investigators could
determine the cause of the fire. The deputy state fire marshal
concluded that the most likely cause of the fire was electrical,
due to a voltage drop that occurred when the electricity flowed
through the undersized cable over a long distance. He also
concluded that the fire most likely started on the porch near the
freezer. The Fancyboys' expert witness confirmed the fire
marshal's conclusions. The expert testified that the freezer
likely malfunctioned due to the reduced current delivered through
the Romex wire, causing the freezer compressor to overheat and
ignite nearby plastics and combustibles.
The Fancyboys filed suit against AVEC, alleging, among
other things, negligent failure to inspect or discover the
dangerous condition and negligent failure to warn the Fancyboys of
the condition. AVEC defended by contending that the fire was not
electrical in origin and that the children had started it.
Alternatively, AVEC argued that Raymond failed to supervise his
sons adequately. The jury found that both AVEC and Raymond were
negligent and that the negligence of each was a legal cause of
injury to the Fancyboys. The jury then allocated forty percent of
fault to AVEC and sixty percent of fault to Raymond.
The jury awarded $100,000 to Raymond and Kathy for
damages to their home and personal property. Kathy, as personal
representative of Willie's estate and legal guardian of Todd, did
not receive any recovery. Neither Kathy nor Raymond received any
damages for loss of consortium. Raymond received no compensation
for his painful injuries.
The trial judge and counsel for both parties agreed that
the jury's failure to award stipulated medical expenses was
inconsistent with its finding that AVEC was partially liable. The
Fancyboys also argued that the jury's failure to award any non-
economic damages was inconsistent with its determination that
AVEC's negligence was a legal cause of the fire.
The court attempted to cure the inconsistency with a
supplemental jury instruction on the stipulated medical expenses,
deferring "for a different day"the issue of whether the evidence
supported the jury's decision not to award non-economic damages.
The court informed the jury of the inconsistency between its
finding that AVEC's negligence was a legal cause of the plaintiffs'
harm and its decision not to award the stipulated medical damages
and asked the jury to redeliberate, allowing it to reconsider any
of its findings.
The jury returned a second verdict, awarding stipulated
medical damages for Raymond and Todd's injuries, as well as an
amount for Todd's future medical expenses. The jury made no other
changes to the verdict. A jury poll revealed that the verdict was
unanimous.
AVEC later moved to reinstate the original verdict,
arguing that the verdict was consistent after all. AVEC reasoned
that the jury could have believed both that AVEC was a legal cause
of the property damage and that Raymond was a superseding cause of
Willie's death and the personal injuries suffered by the family.
The trial court agreed with AVEC's position that the original
verdict was consistent but concluded that AVEC had waived that
argument when it agreed to the supplemental jury instruction.
Thus, the court denied AVEC's motion to reinstate the original
verdict.
The Fancyboys moved for a new trial on non-economic
damages, arguing that they had established these damages by the
clear weight of the evidence. Based on its determination that the
first verdict was actually consistent, the court denied the
Fancyboys' motion for a new trial.
When the superior court entered final judgment, it
reduced the damage awards to each plaintiff by sixty percent, the
percentage of fault allocated to Raymond. But it also determined
that the Fancyboys were the prevailing party and awarded them
attorney's fees. The Fancyboys appeal the trial court's reduction
of the awards and its refusal to grant a new trial on damages.
AVEC cross-appeals the trial court's refusal to reinstate the
original verdict and the court's designation of the Fancyboys as
the prevailing party for the purpose of awarding attorney's fees.
III. DISCUSSION
A. The Trial Court Did Not Err by Reducing the Fancyboys'
Recovery by the Proportion of Fault Allocated to Raymond.
The Fancyboys argue that the trial court erred by
reducing the jury's damage awards to Kathy, Todd, and the estate of
Willie by the percentage of fault allocated to Raymond. They
assert that AS 09.17.080, [Fn. 3] the statute governing fault
allocation in tort cases, does not permit courts to allocate fault
to a co-plaintiff who has not been named as a third-party defendant
pursuant to Alaska Civil Rule 14(c). [Fn. 4] To support their
interpretation, the Fancyboys assert that a co-plaintiff is not a
"party to the claim"for purposes of AS 09.17.080(a)(2).
The question whether AS 09.17.080 permits reduction of
one plaintiff's verdict by the percentage of a co-plaintiff's fault
is an issue of first impression in Alaska. When we construe the
meaning of a statute, we apply our independent judgment. [Fn. 5]
We look to "the meaning of the language, the legislative history,
and the purpose of the statute in question."[Fn. 6] We then adopt
the rule of law that is most persuasive in light of precedent,
reason, and policy. [Fn. 7]
Alaska Statute 09.17.080 expressly instructs a court or
jury to apportion fault to each party liable on the basis of
several liability. [Fn. 8] In particular, AS 09.17.080(a)(2)
requires the trial court to instruct the jury to decide "the
percentage of the total fault of all the parties to each claim that
is allocated to each claimant, defendant, third-party defendant,
and person who has been released from liability." (Emphasis
added.) The Fancyboys interpret this language to mean that unless
the defendant names the negligent co-plaintiff as a third-party
defendant, the negligent co-plaintiff is not a party to the non-
negligent plaintiff's claim against the defendant, and, thus, a
court cannot reduce a non-negligent plaintiff's recovery by the
negligent co-plaintiff's fault. Because the members of the
Fancyboy family assert distinguishable claims, they maintain that
a court cannot reduce any awards to the innocent claimants based on
Raymond's fault.
We assume as a rule of statutory interpretation that the
same words used twice in the same statute have the same meaning.
[Fn. 9] In Benner v. Wichman, [Fn. 10] we construed the meaning of
the term "party"in the context of AS 09.17.080(d), which requires
that the court enter judgment "against each party liable . . . in
accordance with that party's percentage of fault." We determined
that the use of the term "party"in AS 09.17.080(a) -- "party to
the action, including third-party defendants and persons who have
been released"-- should be applied to subsection (d) as well. [Fn.
11] In doing so, we recognized the importance, "[w]henever
possible, [to] construe each part or section of a statute with
every other part or section, to produce a harmonious whole."[Fn.
12] Applying this rule of construction, we conclude that AS
09.17.080(a)(2) allows the jury to allocate fault to Raymond as a
party to the action.
Here, the jury allocated sixty percent of the fault to
Raymond and forty percent of the fault to AVEC. According to AS
09.17.080(d), the court could only enter judgment against AVEC for
its equitable share of the obligation. [Fn. 13] Thus, while the
other Fancyboys may bear no fault, Raymond's fault as their co-
plaintiff reduces their recovery from AVEC.
The Fancyboys also object to AVEC's failure to name
Raymond as a third-party defendant under Civil Rule 14(c). They
first argue that allocating fault to a co-plaintiff who has never
been named as a third-party defendant could result in an injustice
to the innocent co-plaintiff who may not receive full compensation
for losses suffered: "[I]f a defendant contends one plaintiff is
negligent but does not name that plaintiff as a third-party
defendant, the defendant may reduce its own liability to all the
plaintiffs and deny the innocent, non-negligent plaintiffs the
opportunity to recover fully for their damages." But here, because
of the familial relationship, the Fancyboys have not asserted any
interest in collecting from Raymond the remaining sixty percent
share of the judgment; the concern that they express is purely
hypothetical. Thus, the Fancyboys' point that an innocent
plaintiff may be unable to recover from a liable co-plaintiff who
has not been joined as a third-party defendant need not be
addressed in this case.
The Fancyboys next argue that because AVEC failed to file
a third-party claim for allocation of fault as provided by Civil
Rule 14(c), they were not properly notified of AVEC's plan to
allocate fault to Raymond. But as the trial court recognized,
AVEC's answer to the Fancyboys' complaint contained the affirmative
defense that "[a]ny damages . . . were caused, in whole or in part,
by the negligence of one or more of the plaintiffs." We thus agree
with the trial court's conclusion that the Fancyboys had adequate
notice that AVEC planned to make a claim for apportionment.
Because AS 09.17.080 allows allocation of fault to a co-
plaintiff as a party to the action without requiring the defendant
to implead the co-plaintiff as a third-party defendant and because
AVEC provided adequate notice of its intent to allocate fault to
Raymond, we conclude that the trial court did not err in reducing
the Fancyboys' recovery by Raymond's allocation of fault.
B. The Trial Court Did Not Err by Denying the Motion to
Reinstate the Original Verdict.
AVEC contends in its cross-appeal that the trial court
should have granted its motion to reinstate the original verdict on
the ground that it was consistent. In its first verdict, the jury
found that AVEC's negligence was a legal cause of the fire but only
awarded the Fancyboys damages for destruction of their home and
other family property. This verdict puzzled the court and counsel
for both parties because the parties had stipulated to certain
medical costs as damages. The superior court provided clarifying
instructions to the jury on this matter, directing it to
redeliberate and allowing it to reconsider "any finding which you
have made."
After the superior court entered final judgment based on
an amended verdict that included the stipulated medical expenses,
AVEC attempted to justify the first verdict's perceived
inconsistencies by arguing that the jury could have concluded that
AVEC was a legal cause of property damage to the house but that
Raymond's conduct was a superseding cause of all personal injuries
suffered by the Fancyboys. The superior court agreed that this
theory reconciled any perceived inconsistencies in the original
verdict:
I realized how this verdict could be
consistent and it's in fact how defendants have argued it. . . .
[A]lthough Mr. Fancyboy was not a superseding cause as to the fire,
[it could be] that he was a superseding cause as to the physical
harm to the parties or that the jury could have rationally viewed
it as such.
Yet the judge found that AVEC had waived reinstitution of the first
verdict by agreeing at trial to resubmit the issue to the jury.
We need not address the waiver issue here because we
conclude that the original verdict was inconsistent as a matter of
law. AVEC's proposed justification for the first verdict assumes
that a jury could properly find that Raymond's conduct was a
superseding cause of liability for non-economic damages. AVEC
contends that if Raymond had not been drinking, he would have
supervised the children properly and possibly prevented the fire.
Under our case law on superseding cause, however, any negligence in
Raymond's supervision does not release AVEC from its liability for
the resulting damages.
An event can have a superseding cause when "after the
event and looking back from the harm to the actor's negligent
conduct, it appears to the court highly extraordinary that it
should have brought about the harm."[Fn. 14] But "[a]n
intervening cause that lies within the scope of the foreseeable
risk, or has a reasonable connection to it, is not a superseding
cause."[Fn. 15] Thus, a third party's conduct is not a
superseding cause as a matter of law if the conduct was within the
scope of foreseeable risk created by the defendant's negligence.
For example, in Osborne v. Russell, [Fn. 16] Osborne was
fatally electrocuted when he reached into a floor safe and brushed
bare wires sticking out of an open electrical box at the store
where he worked. [Fn. 17] The representative of Osborne's estate
sued the store's electrician for negligence. [Fn. 18] We held that
"the fact that someone flipped over the circuit breaker and pulled
out the wires does not, as a matter of law, amount to a superseding
cause."[Fn. 19] Similarly, in Gordon v. Alaska Pacific
Bancorporation, [Fn. 20] the plaintiff was attacked and injured
after intervening in a fight at a company party. [Fn. 21] The
plaintiff sued the host company for negligent performance of its
duty to provide security for his safety. [Fn. 22] We concluded as
a matter of law that neither the plaintiff's intervention in the
fight nor the subsequent attack on the plaintiff by one of the
participants in the fight was a superseding cause of the
plaintiff's injuries. [Fn. 23] Finally, in Loeb v. Rasmussen, [Fn.
24] a minor committed suicide following an alcohol-related car
accident. [Fn. 25] The representative of the minor's estate sued
the owner of the store that had sold liquor to the minor prior to
the accident. [Fn. 26] We held that the minor's willful misconduct
in unlawfully buying and consuming alcohol and then driving while
intoxicated was not a superseding cause of her injuries because
"[i]t is well within the scope of foreseeable risk that a minor who
purchases alcohol may drive an automobile, and that an alcohol-
related accident may result."[Fn. 27]
At trial in this case, AVEC argued in both its opening
statement and closing argument that the fire was not electrical in
origin; rather, AVEC maintained that the children had started the
fire due to Raymond's failure to supervise. But the jury's
determination that AVEC's negligence was a legal cause of the fire
indicates that it found that the fire was electrical in origin.
Raymond's conduct in falling asleep while the children were home
and failing to awaken during an electrical fire, even if due to
drinking, was entirely within the scope of foreseeable risk from
AVEC's negligence. Thus, even if Raymond's negligence was an
intervening, contributory cause, it was not a superseding cause.
In turn, AVEC should have been held liable for its proportionate
share of all resulting damages.
Accordingly, the jury's first verdict, which failed to
make any award for the Fancyboys' medical expenses or their non-
economic damages was necessarily inconsistent. Thus, we affirm the
trial court's denial of AVEC's motion to reinstate the original
verdict.
C. The Trial Court Erred by Denying the Fancyboys' Motion
for a New Trial.
After the court instructed the jury to redeliberate, the
jury continued to award only property damages and the stipulated
medical expenses even though AVEC never disputed the Fancyboys'
showing of non-economic harm. Upon return of this verdict, the
trial court commented that the verdict was "not particularly a
logical verdict." But based on its retrospective conclusion that
the first verdict was consistent, the trial court refused to grant
a new trial. [Fn. 28] The Fancyboys argue that the trial court
should have granted a new trial because the second verdict was
inconsistent in its exclusion of non-economic damages.
AVEC first contends that the Fancyboys waived their right
to challenge the consistency of the second verdict because the
Fancyboys did not make an additional objection to inconsistency
upon return of the second verdict. To preserve an inconsistency
objection, the party must have asked for resubmission of the issue
prior to the discharge of the jury. [Fn. 29]
As the Fancyboys point out, they made two separate
objections after the first verdict: They objected to both the
jury's failure to include the stipulated medical expenses and its
failure to include any non-economic damages. The court instructed
the jury that it must consider stipulated medical damages but
declined to address the issue of the jury's failure to award non-
economic damages: "I think there are two problems. One of which
is a problem for a different day." This remark suggests that the
court viewed the jury's failure to award non-economic damages as a
problem with the adequacy of the verdict, rather than an
inconsistency that required an immediate cure. By phrasing the
issues in this way, the court effectively represented to the
Fancyboys that they had preserved their objection to the failure to
award non-economic damages. Because the Fancyboys could have
reasonably relied on that representation, we conclude that they did
not need to make the same objection to inconsistency after the
second verdict.
We now turn to the consistency of the second verdict. As
we discussed with respect to the first verdict, in light of the
jury's determination that the fire was electrical in origin,
Raymond's failure to wake up during the fire to supervise the
children was a foreseeable result of AVEC's negligence. Thus,
although Raymond's negligence may have been an intervening cause of
the Fancyboys' injuries, it could not have been a superseding
cause. Accordingly, AVEC is liable for its proportionate share of
all resulting damages, whether economic or non-economic. We see no
principled way for the jury to have awarded damages for property
loss and medical expenses but not non-economic damages to
compensate the Fancyboys for their painful burns and their loss of
consortium due to Willie's death. Because the second verdict was
inconsistent, a new trial is indeed "required in the interest of
justice"pursuant to Alaska Civil Rule 59(a).
The Fancyboys also ask us to direct the trial court on
remand to limit the new trial to the issue of damages. At the end
of the trial, the trial court suggested that any new trial would
require resubmission of all issues to the jury. The question of
"[w]hat issues are to be relitigated upon remand, in the absence of
a directive from this court, is within the discretion of the trial
court."[Fn. 30] "Whether the issues [of liability and damages]
are sufficiently separable to warrant a partial new trial depends
on the facts and circumstances of each case."[Fn. 31] In
comparative negligence cases, we have upheld trial court decisions
granting a partial new trial on the issue of liability alone, [Fn.
32] the issue of damages alone, [Fn. 33] and a full trial on both
the liability and damages issues. [Fn. 34] Given the broad
discretion that we afford trial courts on this matter, we leave it
to the superior court to determine whether a new trial on all
issues will be necessary.
IV. CONCLUSION
We conclude that the first and second verdicts in this
case were inconsistent as a matter of law. Accordingly, we REVERSE
and REMAND for a new trial. [Fn. 35]
FOOTNOTES
Footnote 1:
In 1991 AVEC had converted its system at Pilot Station from
covered utilidors to overhead lines. Because the Fancyboys' house
was empty at the time of the conversion, AVEC did not install an
overhead line.
Footnote 2:
Individuals often use jump lines in bush Alaska to provide
power to steambaths and other outbuildings. If the jump line is
attached properly, the meter box registers the electricity being
used, so AVEC can bill the customer for the extra use.
Footnote 3:
The version of AS 09.17.080 that governs this case took effect
in 1989. It provides:
(a) In all actions involving fault of
more than one party to the action, including third-party defendants
and persons who have been released under AS 09.16.040, the court,
unless otherwise agreed by all parties, shall instruct the jury to
answer special interrogatories or, if there is no jury, shall make
findings, indicating
(1) the amount of damages each
claimant would be entitled to recover if contributory fault is
disregarded; and
(2) the percentage of the total
fault of all of the parties to each claim that is allocated to each
claimant, defendant, third-party defendant, and person who has been
released from liability under AS 09.16.040.
(b) In determining the percentages of
fault, the trier of fact shall consider both the nature of the
conduct of each party at fault, and the extent of the causal
relation between the conduct and the damages claimed. The trier of
fact may determine that two or more persons are to be treated as a
single party if their conduct was a cause of the damages claimed
and the separate act or omission of each person cannot be
distinguished.
(c) The court shall determine the award
of damages to each claimant in accordance with the findings,
subject to a reduction under AS 09.16.040, and enter judgment
against each party liable. The court also shall determine and
state in the judgment each party's equitable share of the
obligation to each claimant in accordance with the respective
percentages of fault.
(d) The court shall enter judgment
against each party liable on the basis of several liability in
accordance with that party's percentage of fault.
The statute changed following trial in this case. See ch. 26,
sec.sec.
11-13 SLA 1997 (effective Aug. 7, 1997).
Footnote 4:
Civil Rule 14(c) provides:
For purposes of apportioning damages under AS
09.17.080, a defendant, as a third-party plaintiff, may follow the
procedure of paragraph (a) to add as a third-party defendant any
person whose fault may have been a cause of the damages claimed by
the plaintiff. Judgment may be entered against a third-party
defendant in favor of the plaintiff in accordance with the third-
party defendant's respective percentage of fault, regardless of
whether the plaintiff has asserted a direct claim against the
third-party defendant.
Footnote 5:
See Muller v. BP Exploration (Alaska), Inc., 923 P.2d 783, 787
(Alaska 1996).
Footnote 6:
Id.
Footnote 7:
See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
Footnote 8:
See AS 09.17.080(d). By popular initiative, Alaska has
abolished the system of joint and several liability, in which each
tortfeasor could be fully liable for the injured party's damages
and seek contribution or indemnity from any other joint tortfeasor.
See Robinson v. Alaska Properties and Inv., Inc., 878 F. Supp.
1318, 1321 (D. Alaska 1995); Benner v. Wichman, 874 P.2d 949, 955
(Alaska 1994). Thus, a plaintiff "[can] only recover from each
tortfeasor in the proportion that his fault played to the total
fault of all the persons and entities at fault including the
plaintiff herself." Robinson, 878 F. Supp. at 1321.
Footnote 9:
See 2A Norman J. Singer, Sutherland's Statutes and Statutory
Construction sec. 46.06 (5th ed. 1992); Benner, 874 P.2d at 957.
Footnote 10:
874 P.2d 949 (Alaska 1994).
Footnote 11:
Id. at 957-58.
Footnote 12:
Id. at 957 (citations omitted).
Footnote 13:
See AS 09.17.080(d).
Footnote 14:
Dura Corp. v. Harned, 703 P.2d 396, 402 (Alaska 1985)
(citation omitted).
Footnote 15:
Id.
Footnote 16:
669 P.2d 550 (Alaska 1983).
Footnote 17:
See id. at 552.
Footnote 18:
See id.
Footnote 19:
Id. at 556.
Footnote 20:
753 P.2d 721 (Alaska 1988).
Footnote 21:
See id. at 722.
Footnote 22:
See id.
Footnote 23:
See id. at 725.
Footnote 24:
822 P.2d 914 (Alaska 1991).
Footnote 25:
See id. at 916.
Footnote 26:
See id.
Footnote 27:
Id. at 920.
Footnote 28:
A trial court has broad discretion to grant or refuse a motion
for a new trial. See Buoy v. ERA Helicopters, Inc., 771 P.2d 439,
442 (Alaska 1989) (affirming grant of new trial based on an
inadequate verdict). A trial court may grant a new trial "if
required in the interest of justice." Alaska R. Civ. P. 59(a). A
new trial may be appropriate if the verdict is inadequate or
inconsistent. See Buoy, 771 P.2d at 442; McCubbins v. State, Dep't
of Natural Resources, 973 P.2d 588, 593-94 (Alaska 1999) (reversing
denial of new trial based on an inconsistent verdict). We will not
disturb a trial court's ruling on such a motion "except in the most
exceptional circumstances and to prevent a miscarriage of justice."
Sebring v. Colver, 649 P.2d 932, 934 (Alaska 1982) (citation
omitted). Upon review of the record, we must be left with a
definite and firm conviction that the trial court erred. See id.
Footnote 29:
See Blumenshine v. Baptiste, 869 P.2d 470, 473 (Alaska 1994);
Buoy, 771 P.2d at 446 n.7.
Footnote 30:
Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 795 (Alaska
1981); see also Alaska R. Civ. P. 59(a) (holding that a trial court
can grant a new trial on "all or part of the issues in an action
where there has been a trial by jury"); State v. Municipality of
Anchorage, 805 P.2d 971, 974 (Alaska 1991) ("On a motion for a new
trial . . . the trial court has discretion . . . to order that the
new trial be had on all or part of the issues . . . .") (quoting 6A
J. Moore, J. Lucas & G. Grotheer, Moore's Federal Practice  59.06
(2d ed. 1989)) (first two alterations in original).
Footnote 31:
Beck, 624 P.2d at 795; see also Municipality of Anchorage, 805
P.2d at 973; Sturm, Ruger & Co. v. Day, 615 P.2d 621, 623 (Alaska
1980).
Footnote 32:
See Day, 615 P.2d at 624.
Footnote 33:
See Sebring v. Colver, 649 P.2d 932, 934 (Alaska 1982).
Footnote 34:
See Municipality of Anchorage, 805 P.2d at 975 (concluding
that the jury's small damage award, in light of its finding that
the state was thirty percent at fault, suggested compromise or
prejudice on its face and justified a new trial).
Footnote 35:
AVEC also argues on cross-appeal that it should have been
designated as the prevailing party for the purpose of attorney's
fees. Because we are remanding for a new trial, however, we need
not address that issue.
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