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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sowinski v. Walker (12/31/2008) sp-6332

Sowinski v. Walker (12/31/2008) sp-6332, 198 P3d 1134

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

ROSE SOWINSKI and JAMES McGILL, )
d/b/a DELROIS BAR AND LIQUOR ) Supreme Court Nos.
STORE, ) S-12114/S- 12203/S-12734
)
Appellants, ) Superior Court Nos.
) 3PA-97-1096 CI/3PA-98-370 CI
v. ) 3PA-98-557 CI/3PA-98-573 CI
) 3PA-97-1096 CI
WILLIAM PATRICK WALKER, ) (Consolidated)
Personal Representative of the Estate of )
ROBERT JASON WALKER, WILLIAM ) O P I N I O N
PATRICK WALKER, DONNA IRENE )
WALKER, and RHONDA WALKER; ) No. 6332 December 31, 2008
DONALD LAWRENCE VAUGHN, )
Personal Representative of the Estate of )
JUSTIN DANIEL VAUGHN, DONALD )
LAWRENCE VAUGHN, and DONNA )
VAUGHN, )
)
Appellees. )
)
            )
WILLIAM PATRICK WALKER,            )
Personal Representative of the Estate of     )
ROBERT JASON WALKER, WILLIAM  )
PATRICK WALKER, DONNA IRENE   )
WALKER, and RHONDA WALKER;         )
DONALD LAWRENCE VAUGHN,       )
Personal Representative of the Estate of          )
JUSTIN DANIEL VAUGHN, DONALD       )
LAWRENCE VAUGHN, and DONNA    )
VAUGHN,                            )
                                   )
               Appellants,         )    )
                                   )
     v.                            )
                                   )
STATE OF ALASKA,                   )
                                   )
               Appellee.           )
                                   )

                                   )
ROSE SOWINSKI and JAMES McGILL     )
d/b/a DELROIS BAR AND LIQUOR,      )
                                   )
               Appellants,              )
                                   )
     v.                            )
                                   )
WILLIAM PATRICK WALKER,       )
Personal Representative of the Estate of     )
ROBERT JASON WALKER, WILLIAM  )
PATRICK WALKER, DONNA IRENE   )
WALKER, and RHONDA WALKER;         )
DONALD LAWRENCE VAUGHN,       )
Personal Representative of the Estate of          )
JUSTIN DANIEL VAUGHN, DONALD       )
LAWRENCE VAUGHN, and DONNA    )
VAUGHN,                            )
                                   )
               Appellees.               )
                                   )



          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Beverly W. Cutler, Judge.

          Appearances:  Sarah J. Tugman, Anchorage, for
          Appellants  Rose Sowinski and  James  McGill.
          Phillip Paul Weidner, Michael Cohn, Weidner &
          Associates,  Inc.,  Anchorage,   for   Walker
          Appellants/Appellees.  Charles  W.  Coe,  Law
          Office  of  Charles  W. Coe,  Anchorage,  for
          Vaughn   Appellants/Appellees.    Joanne   M.
          Grace,  Assistant Attorney General, Talis  J.
          Colberg,  Attorney  General,  Anchorage,  for
          Appellee State of Alaska.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Carpeneti, and Winfree, Justices.

          MATTHEWS, Justice.
          FABE,  Chief  Justice,  with whom  CARPENETI,  Justice,
joins, dissenting.

I.   INTRODUCTION
          After  consuming  alcohol purchased at  DelRois  Liquor
Store, minors Robert Walker and Justin Vaughn rode together on an
ATV and were killed when they struck a cable stretched across  an
access  road.  The personal representatives of their estates  and
the  decedents families sued DelRois for providing alcohol to the
boys  and the State of Alaska for failing to maintain the  access
road  free  of  hazards.  The superior court  granted  the  State
summary  judgment.  The personal representatives of the decedents
estates  and  the decedents families appeal.  The claims  against
DelRois proceeded to final judgment after a jury trial.  The jury
found DelRois partly responsible and apportioned to it a share of
the  plaintiffs damages.  DelRois appeals.  We hold the State did
not  have a duty either to maintain the access road or to  remove
the  cable  running across it.  With respect to DelRoiss  appeal,
because  we  conclude  that  the legislatures  adoption  of  pure
several liability in AS 09.17.080 supersedes our holding in  Loeb
v.  Rasmussen,1  we  hold the superior court erred  in  requiring
DelRois  to  bear the decedents share of responsibility  for  the
accident.   We conclude that under Alaskas system of  comparative
negligence  with pure several liability, a dram  shop  is  liable
only for its percentage of fault in actions between the shop  and
a minor that involve the shops provision of and the minors use of
alcohol.   While  we  reject  DelRoiss  arguments  regarding  the
superior   courts  failure  to  reduce  the  Walker  and   Vaughn
plaintiffs  recovery by their settlement amount  and  to  exclude
various  testimony,  we  hold that the superior  court  erred  by
allowing the jury to award loss of enjoyment of life damages  and
by  instructing the jury that it could award nonpecuniary damages
to Walkers sister.  Likewise, we hold the superior court erred in
instructing the jury that it could award damages to the decedents
parents  for  loss of consortium for the decedents  post-majority
period.  We therefore vacate the judgment against DelRois and the
various awards to the Walker and Vaughn plaintiffs and remand for
modification.
II.  FACTS AND PROCEEDINGS
          This case arises from an ATV accident in which two boys
died.   While  the  parties dispute the facts,  it  appears  that
sometime  in  the  late evening of June 24, 1996,  or  the  early
morning of June 25, 1996, minors Justin Vaughn and Robert  Walker
(collectively  the  decedents) both  consumed  alcohol  they  had
purchased   at  DelRois  Liquor  Store.2   After  drinking,   the
decedents  and Crystal Brueggeman rode an ATV northeast  along  a
beach adjacent to the Knik River, with Vaughn driving.3  At about
four  oclock  in the morning, Vaughn turned the ATV  off  of  the
beach and drove southwest down an access road4 that connected the
beach  to  Knik River Road.  Vaughn drove along the access  road,
through  property  owned  by  Raone Bingham,5  and  crossed  onto
property  owned  by  the federal government.   Raones  son,  Carl
Bingham, had strung a cable across the access road on the federal
land  to  prevent trespassers from entering the Bingham property.
          The ATV struck the cable, killing Vaughn and Walker within
seconds  or  minutes.6   It  is unknown  whether  they  suffered.
Robert  Walkers  parents, Donna and William Walker,  and  sister,
Rhonda  Walker,  were notified of the accident  at  approximately
seven  oclock that same morning and arrived on the scene in  time
to view the decedents bodies.
          The  personal representatives of the decedents  estates
and  the decedents families7 (collectively the Walker and  Vaughn
plaintiffs)  sued  several parties in superior court  to  recover
damages  resulting  from the accident.   They  sued  DelRois  for
providing  alcohol to the underage decedents and  the  State  for
failing to maintain the access road free of hazards.  The  Walker
and  Vaughn  plaintiffs  also sued Raone  and  Carl  Bingham  for
erecting the cable that killed their sons, but the plaintiffs and
Binghams   eventually  settled  these  claims.8    The   personal
representatives of the decedents estates sued to recover for  the
decedents pain and suffering, loss of enjoyment of life, and loss
of  future  earnings.  The decedents families   including  Justin
Vaughns  parents  (Donald and Donna Vaughn)  and  Robert  Walkers
parents  (William  and Donna Walker) and sister  (Rhonda  Walker)
sought  to  recover damages for emotional distress  and  loss  of
consortium.9
          The  State moved for summary judgment, arguing that  it
did  not  own  the land on which the access road was located  and
that  there  was no other basis for holding the State liable  for
failing  to maintain the access road.  The superior court  agreed
and  dismissed  all  claims against the State.   The  Walker  and
Vaughn plaintiffs appeal.
          The Walker and Vaughn plaintiffs claims against DelRois
proceeded to a jury trial.  The superior court provided a special
verdict  form to the jury.  In answering questions on  this  form
the  jury  made several factual findings, including  the  damages
suffered by each plaintiff, and apportioned percentages of  fault
for  the  accident.  The jury found that DelRois provided alcohol
to  the  decedents and that this act was a cause of the accident.
It  apportioned to DelRois thirty-five percent of the  fault  for
the  accident.  The jury apportioned twenty-five percent  of  the
fault for the accident to Justin Vaughn and two percent to Robert
Walker.10  The jury also valued the loss of the decedents estates
the  decedents pain and suffering, loss of enjoyment of life, and
loss  of  future earnings  and the loss of the decedents families
emotional damages and loss of consortium.11
          The  superior  court entered judgment in favor  of  the
Walker  and Vaughn plaintiffs.  The court further ordered DelRois
to  pay damages not only for its share of responsibility for  the
accident,  thirty-five percent, but also the decedents  share  of
responsibility, twenty-seven percent total.12  The court reasoned
that DelRois could not reduce its share of responsibility by that
of the decedents because the court found that Alaska statutes and
case  law  did  not  permit  a  comparative  negligence  defense.
DelRois appeals.
          The  certificate for distribution of the final judgment
was  mailed  by  the clerk of court on November  11,  2005.   The
Walker and Vaughn plaintiffs moved for attorneys fees on May  12,
          2006.  DelRois opposed the motion on untimeliness grounds.  After
considering  supplemental memoranda, the court decided  to  award
fees  despite  the  lateness of the motion.   The  court  awarded
partial  attorneys fees of more than $160,000 under the contested
with trial schedule of Civil Rule 82(b)(1).  DelRois has filed  a
separate appeal from this award which we consider with its appeal
on the merits.
III. THE WALKER AND VAUGHN PLAINTIFFS APPEAL
          The  Walker  and Vaughn plaintiffs appeal the  superior
courts  determination  that the State did  not  have  a  duty  to
maintain  the  access  road and keep it free  from  hazards.   To
understand  their claims, it is helpful to understand the  access
roads history.
          The  access road runs northeast through two  pieces  of
land.   These pieces of land share a common border running  north
and  south.  Both pieces of land are bordered on the north by the
Knik  River.  The Bingham family has owned the eastern  piece  of
land  for all time periods relevant to this case.  As we  explain
below, the federal government has owned the western piece of land
for all time periods relevant to this case.
          In   the  early  1970s  the  State  began  planning  to
construct  Knik  River Road.  The road was to run  east  to  west
along  the  southern  portions of both pieces  of  property.  The
problem  for  the State was that it did not own either  piece  of
land.
          With  respect  to the Binghams land, the  State  merely
condemned the land it needed for its right-of-way.  The  Binghams
objected  and claimed that construction of Knik River Road  would
sever  the  southwest corner of their land.  The  State  and  the
Binghams  settled this dispute by agreeing that the  State  would
take  title  to  the severed portion of land and  compensate  the
Binghams  accordingly.  Of particular relevance to  this  appeal,
the  State  in the settlement agreement promised that the  access
road would remain a public road where it crossed federal land.
          The  State had greater difficulties, however, obtaining
a  right-of-way  across the western property.   Before  1971  the
western piece of property was federal land managed by the Federal
Bureau of Land Management (BLM).  In 1971 Congress withdrew  this
land  in the Alaska Native Claims Settlement Act.13  In 1972  the
State requested that BLM grant the State a right-of-way to become
Knik  River Road.  BLM denied this request.14  In 1985 the  State
again  applied  to  BLM  for  a  right-of-way.   The  application
requested a 200-foot-wide right-of-way through the federal  land.
In  1987  BLM finally granted the State a 100-foot-wide right-of-
way  along Knik River Road, extending fifty feet on each side  of
the centerline of Knik River Road.
          In  1986 the Binghams strung a cable across the  access
road  to keep trespassers off of their land.  Carl Bingham placed
the  cable  roughly 100 feet from the centerline  of  Knik  River
Road,  fifty  feet beyond the States right-of-way.  Between  1986
and the time of the decedents accident, the cable caused at least
one other accident:  in 1990, a car turned off of Knik River Road
and  collided  with  the  cable, sustaining  minor  damage.   The
Binghams notified the State of this accident and a state  trooper
          filed a report.
          As  of the decedents accident, the access road ran from
Knik  River Road, through federal land  including the portion  of
the  access road across which Carl Bingham strung the cable   and
onto  the Binghams property.  The State has never designated  the
access  road  as part of the state highway system and  has  never
recognized the access road as a state-owned right-of-way.
          Before  trial,  the  State moved for summary  judgment,
arguing  that it had no duty to maintain the access road or  keep
it  free  from  obstruction  and thus  was  not  liable  for  the
accident.  The Walker and Vaughn plaintiffs presented a number of
theories  in their opposition to the States motion in support  of
such  a  duty.  The superior court granted the States motion  for
summary judgment.
     A.   The  Superior Court Correctly Held that the  State  Did
          Not  Have  a  Contractual Duty To Maintain  the  Access
          Road.
          
          The  Walker and Vaughn plaintiffs argue that the  State
had  a contractual duty to maintain the access road, arising from
its 1974 settlement with Carl Bingham in the condemnation action.
In  the  1974 settlement, the State agreed that the two presently
constructed access roads connecting defendants remaining property
with  the  Knik  River  Road are public  roads.   The  plaintiffs
contend that the term public road is ambiguous, both in legal and
common  usage,  and thus should be construed in  their  favor  on
summary judgment to include a promise by the State to protect and
maintain the access road for the benefit of the traveling public.
The plaintiffs claim that extrinsic evidence shows that the State
intended to maintain the access road.
          The  State  answers that the agreement between  it  and
Carl  Bingham did not obligate the State to maintain  the  access
road  for the benefit of the Binghams and certainly not  for  the
benefit  of third parties.  The State argues that this settlement
merely obligated the State to preserve access on the road to  the
Bingham property for the Binghams themselves.
          We  review  grants of summary judgment de novo.15   The
goal  of  contract  interpretation  is  to  give  effect  to  the
reasonable  expectations of the parties.16  In  pursuit  of  this
goal,  we  consider the contracts language as  well  as  relevant
extrinsic evidence  including subsequent conduct of the parties.17
While contract interpretation is generally a matter of law,18 and
thus  appropriate  for  summary judgment, factual  questions  may
arise with respect to extrinsic evidence or the parties intent.19
Summary  judgment  is  appropriate  only  if  after  making   all
reasonable inferences about such open factual questions in  favor
of  the  nonmoving party, the moving party is still  entitled  to
judgment as a matter of law.20
          As  an  initial  matter, we agree with the  Walker  and
Vaughn   plaintiffs  that  the  language  of  the  agreement   is
ambiguous.   The State promised that the access road would  be  a
public road.  The plain meaning of the term public road is merely
a  road  that the public may freely use.21  The term public  road
does not appear to have any particular meaning in Alaska law   it
          is not defined either in Alaska statutes or regulations.  While
there  are  numerous roads in Alaska that are accessible  to  the
public that the State does not maintain,22 there are also a  vast
number  of roads used by the public that the State does maintain.
Given  these contradicting facts, it would be possible  based  on
the settlements language  though not necessary  for the State  or
Carl  Bingham to construe the settlement as obligating the  State
to  maintain the access road.  Accordingly, we must look  to  the
extrinsic   evidence  surrounding  the  settlement  to  determine
whether the State had such an obligation.
          As  another  initial matter, we must  accept  that  the
State  has  never  maintained the access road  because  there  is
insufficient  evidence to support a reasonable inference  to  the
contrary.23   The State has only maintained the  portion  of  the
access  road  where  it  connects to Knik  River  Road.   From  a
photograph  that was taken after the accident of the  portion  of
the  access road across which the Binghams strung the cable, that
portion   appeared  completely  unmaintained.   17   AAC   20.040
generally  prohibits the Department of Transportation and  Public
Facilities  from  maintaining  roads  that  the  State  has   not
designated  as highways, such as the access road.  It  is  normal
for  the  State to remove obstacles from state-maintained  roads,
but  the  Binghams left the cable across the access  road  for  a
decade  before  the  accident.  This strongly suggests  that  the
State has never maintained the access road.
          The Walker and Vaughn plaintiffs provide no evidence to
the  contrary.   They  cite the deposition  testimony  of  Daniel
Beardsley, the Chief Right-of-Way Agent for the Alaska Department
of  Transportation  and Public Facilities, Central  Region,  from
1987  through 1994.  But Beardsley testified that the State  only
placed  and maintained gravel on the entrance to Knik River  Road
to  allow  travel  between this road and the  access  road.   The
Walker  and Vaughn plaintiffs also cite the deposition  of  Chris
Kepler, maintenance manager for the Department of Transportation.
The plaintiffs highlight that Kepler admitted that the Department
of  Transportation might have relied upon an erroneous  map  that
showed  the  States  right-of-way extending  100  feet  from  the
centerline  of  Knik  River Road, just past  where  the  Binghams
placed  the cable.  But Kepler testified, as Beardsley did,  that
the  Department of Transportation only maintained the  gravel  on
Knik  River  Road.  Accordingly, we cannot reasonably infer,  for
the  purposes of summary judgment, that the State has  maintained
any significant portion of the access road.
          Turning  now  to  the  main  issue   whether  extrinsic
evidence  shows  that  the condemnation settlement  contractually
obligated the State to maintain the access road  it is clear that
the  State  had no such obligation.  The fact that the State  has
never  maintained the access road provides the strongest evidence
that  it  was  not contractually obligated to do so.24   If  Carl
Bingham had intended the condemnation settlement to contractually
obligate  the State to maintain the access road, he likely  would
have  complained at least once during the twenty years  following
the  execution  of that agreement that the State was  in  breach.
Yet  the record does not disclose such a complaint.  Indeed,  the
          Binghams performed at least some maintenance on the access road
themselves, plowing the road in the winter.25
          Rather,  the evidence suggests that the State and  Carl
Bingham   ostensibly  entered  the  settlement  for  two   other,
unrelated  purposes.   First, the State  and  Bingham  needed  to
settle  the  amount of compensation that the State would  provide
Bingham  for the land it had taken from him.  Second,  the  State
and  Bingham wanted to ensure that Bingham would continue to have
use  of  the  access  road  for the purpose  of  getting  to  his
property.  The access road was one of two roads by which  Bingham
could  reach his property before the State built Knik River Road.
As described above, in the early 1970s, the status of the land on
which  the  access  road sat was in flux.  The  State  sought  to
protect  Binghams use of this road throughout these  changes  and
into  the  future.  Thus, the State and Bingham had two  pressing
issues in mind when entering the settlement  compensating Bingham
and  preserving his use of the access road.  Both of these issues
could  be  resolved without requiring the State to  maintain  the
access road.
     B.   The  Superior Court Correctly Held that the  State  Did
          Not  Have  a  Tort Duty To Remove the  Cable  from  the
          Access Road.
          
          The  Walker and Vaughn plaintiffs argue that the  State
breached  a  tort  duty  to  keep  the  access  road  free   from
encroachments.  The question here is the existence of a tort duty
of  care.  This is a question of law, which we review de  novo.26
Absent an applicable duty based on statute, regulation, contract,
or  existing common law tort doctrine, relevant considerations as
to  whether  a duty of care exists include the foreseeability  of
harm,  the connection between the allegedly tortious conduct  and
the  injury, the moral blameworthiness of the conduct, prevention
of  future  harm,  the burden on the defendant and  community  of
imposing  such a duty, and the possibilities of insuring  against
such harms.27
          There  is a compelling reason for us to reject imposing
a  tort duty upon the State: the Department of Transportation has
already considered the question and has determined that the State
should not maintain such roads.  This policy is implemented in 17
AAC  10.020(g),  which provides that [t]he  burden  and  cost  of
maintaining a driveway or approach road within a highway right-of-
way  is  upon  the lands served by a driveway or  approach  road.
Similarly, 17 AAC 20.040 states that [n]o road maintenance of any
nature shall be performed by the state on a highway which is  not
part  of  the  Alaska  Highway  System,  except  by  reimbursable
agreement.  We will not lightly impose a duty upon the  State  to
act in contravention of the informed judgment of an agency.28  The
Walker  and  Vaughn  plaintiffs  arguments  are  insufficient  to
justify  a  departure  from  the  Department  of  Transportations
assessment.
          The  Walker and Vaughn plaintiffs also argue  that  the
States  breach  of  its contractual obligation  to  maintain  the
access road makes the State liable not only in contract, but also
in  tort.   This argument fails in light of our holding that  the
          State had no such contractual obligation.  Further, we have
previously rejected the argument that a breach of contract  alone
without an independent viable theory of tort recovery  could give
rise to damages in tort.29
          The  Walker and Vaughn plaintiffs further contend  that
the  States  mistaken belief that it had a duty to  maintain  the
Knik River Road right-of-way up to 100 feet beyond the centerline
of  that  road  a portion of land that included the  cable   gave
rise to an actual duty to do so.  In our discussion of the Walker
and  Vaughn  plaintiffs contract claim, we  determined  that  the
evidence  cannot reasonably be interpreted to support  a  factual
conclusion that the State maintained the access road.   Moreover,
even  if the State erroneously believed that it had an obligation
to  maintain the access road, this belief would not give rise  to
an  actual obligation to do so.  Generally, a defendants mistaken
view  of  the  law does not alter its actual legal obligations.30
Indeed,  the law of negligence, by definition, imposes  liability
upon  defendants  who may not have known that their  conduct  was
tortious.   The  law seeks to impose tort duties where  they  are
socially  desirable and, conversely, withholds tort duties  where
they are socially undesirable.31  If we would otherwise refuse to
impose  a duty on the State to maintain the access road, then  we
will not impose one simply because the State believed it existed.
          The  Walker  and  Vaughn plaintiffs additionally  argue
that  the  States creation and maintenance of a gravel connection
between  Knik River Road and the access road obligated the  State
to  maintain the entire access road.  But it is inappropriate  to
impose  liability on the State for the maintenance of any  access
road  that  happens  to connect to a state-maintained  road.   We
agree with the superior courts analysis of this contention:
          The   principle  distilled  from   plaintiffs
          argument   is  that  every  time  the   state
          connects  a private road, driveway, or  trail
          with  a  state highway, the state  assumes  a
          duty  to  guarantee safe unobstructed passage
          for the length of the private road, driveway,
          or  trail.  The court must conclude that such
          a   far  reaching  conclusion  cannot  stand,
          especially in Alaska where long stretches  of
          rural  and  urban state highway connect  with
          innumerable   [trails],   paths,   driveways,
          public and private roads.
          
          Finally,  the Walker and Vaughn plaintiffs  argue  that
the  States  knowledge  of  the  danger  that  the  cable  posed,
following  its investigation of the prior car accident  involving
the  same cable, gave rise to a tort duty to remove the cable  or
to  warn  travelers of its danger.  The factors relevant  to  the
imposition  of  a  tort  duty  provide  mixed  support  for   the
proposition that where the State has discovered a danger on  non-
state  land, it should have a duty to remove that danger.   Given
that the cable had already caused a car accident, the State could
foresee the danger that the cable posed.32  And removing the cable
would  have  been nearly costless and would have  prevented  this
          accident, unless it was reinstalled.33  However, the State was not
morally  culpable  for failing to remove a  hazard  on  non-state
property.34   Also, the costs to the community of  imposing  this
burden on the State are high: it would require the State to enter
non-state property and dictate the use of that property  to  non-
state actors.35  We find that the mixed results of the tort  duty
analysis   are   insufficient  to  override  the  Department   of
Transportations considered decision that the State should not  be
in  the  business of maintaining driveways, approach  roads,  and
roads not designated as highways.
     C.   The Walker and Vaughn Plaintiffs Estoppel Arguments Are
          Without Merit.
          
          The   Walker  and  Vaughn  plaintiffs  argue  that  the
doctrines  of quasi-estoppel, equitable estoppel, and  collateral
estoppel bar the State from arguing that it had no duty  to  keep
the  access  road free from hazards.  For each type of  estoppel,
the  plaintiffs make the same general argument:  by entering into
the  condemnation  settlement and by using  erroneous  maps,  the
State represented to the public that it has been maintaining  the
access road  a representation upon which the decedents relied  to
their  demise.  Whether the State should be estopped from arguing
that  it  had  no  duty  to  maintain the  access  road  presents
questions of law which we review de novo.36
          The  doctrine of quasi-estoppel precludes a party  from
taking  a  position  in litigation that is  inconsistent  with  a
position  taken earlier by that same party  but only if  allowing
that party to maintain the latter, inconsistent position would be
unconscionable.37   The  doctrine of equitable  estoppel  bars  a
speaker  from  taking  a  position  inconsistent  with  a   prior
statement  when  another person has reasonably and  detrimentally
relied on the earlier statement.38  Equitable estoppel is similar
to  quasi-estoppel  in  form.   In function,  however,  equitable
estoppel  seeks  to  protect  parties reasonable  expectations,39
whereas   quasi-estoppel  seeks  to  protect  the  integrity   of
litigation.40
          Neither quasi-estoppel nor equitable estoppel bars  the
State  from  arguing that it had no duty to maintain  the  access
road.  The Walker and Vaughn plaintiffs estoppel arguments depend
upon a conclusion that the State had publicly stated that it  had
a  duty  to  maintain  the road.  But such a  conclusion  has  no
justification  on  this record. The Walker and Vaughn  plaintiffs
quasi  and  equitable estoppel arguments are  unfounded  and  the
superior court correctly rejected them.
          The  doctrine  of collateral estoppel prevents  parties
from relitigating issues that a court has already decided against
them.  Collateral estoppel will bar a party from relitigating  an
issue  adjudicated in a prior action if four conditions are  met:
(1)  the  party  was a party or in privity with a  party  in  the
initial action, (2) the issue adjudicated in the prior action  is
identical  to  the issue the party seeks to relitigate,  (3)  the
issue was resolved in the first action by a final judgment on the
merits,  and (4) the determination of the issue was essential  to
the final judgment.41
          The  Walker and Vaughn plaintiffs argue that the States
stipulated  settlement  in  its condemnation  action,  which  was
incorporated into a final judgment, obligated it to maintain  the
access road and thus that the State is collaterally estopped from
relitigating  this issue here.  This argument is  without  merit.
No court has adjudicated the scope of the States duties under the
condemnation  settlement.   With  respect  to  their   collateral
estoppel argument, the Walker and Vaughn plaintiffs again  assume
the  conclusion that they are trying to prove: the State promised
to maintain the access road free from hazards.  Accordingly, this
argument fails and the superior court correctly rejected it.
IV.  DELROISS APPEAL
     A.   The Superior Court Erred by Holding that Delrois Should
          Bear  the  Decedents  Share of Responsibility  for  the
          Accident.
          
          Using a special verdict form provided by the court, the
jury  found that the decedents together bore twenty-seven percent
of  the  responsibility for the accident and  that  DelRois  bore
thirty-five  percent.   The court then  added  these  percentages
together and held that DelRois must pay sixty-two percent of  the
total damages.
          DelRois argues that the superior court erred by finding
that  Alaskas dram shop statute, AS 04.21.020, is not subject  to
Alaskas  most  recent  tort  reform which  enacted  pure  several
liability.  While DelRois acknowledges that our holding  in  Loeb
v.   Rasmussen42  suggests  that  the  doctrine  of   comparative
negligence  does not apply where the victim is a  minor  and  his
negligence results from the defendants illegal sale of alcohol to
him,  DelRois  argues that AS 09.17.080 abrogated  Loeb  and  now
imposes  a  system of pure comparative negligence  where  several
liability applies to all parties  including minors.43
          The  Walker and Vaughn plaintiffs oppose this argument.
They generally argue that the newer statutory system is too broad
to  abrogate  our prior determination that statutes  barring  the
sale  of  alcohol to minors represent exceptional  statutes  that
preclude a vendor from asserting the minors fault in a negligence
suit.
          This  court has not yet had the opportunity to  address
the  status of Alaskas dram shop law in light of Alaskas adoption
of  pure  several  liability.   Whether  a  defendants  liability
arising  from the sale of alcohol to a minor is reduced  by  that
minors  negligence in purchasing and consuming the alcohol  is  a
question of law which we review de novo.44
          We hold that the enactment of pure several liability in
AS  09.17.080  represents  a  changed  condition45  and  that  AS
04.21.020 is subject to pure several liability.  Accordingly,  we
conclude  that  our prior holding in Loeb v. Rasmussen  has  been
superseded  by AS 09.17.080 and that DelRois is responsible  only
for its own share of the damages.
          1.   Alaskas  transition to pure comparative negligence
               with pure several liability.
               
          Under  Alaskas former joint and several liability  tort
          system, each tortfeasor could be held responsible for all damages
resulting  from  a  negligent act regardless  of  the  individual
tortfeasors  share  of the fault.46  The first  step  toward  our
current  system  of  comparative  negligence  with  pure  several
liability  came  in  1970  when  the  legislature  granted  joint
tortfeasors  the  right of contribution by  enacting  the  Alaska
Uniform Contribution Among Tortfeasors Act.47  The next step came
in  1975 when we rejected the doctrine of contributory negligence
and  adopted the doctrine of comparative negligence in  Kaatz  v.
State.48  However, Kaatz only adopted pure comparative negligence
and did not alter Alaskas status as a joint and several liability
jurisdiction.49
          In  1986 the legislature passed the Tort Reform  Act,50
which was modeled after the Uniform Comparative Fault Act.   That
legislation codified a broad comparative negligence doctrine51 but
retained  a version of joint and several liability.52   The  1986
version of AS 09.17.080 provided:
          Apportionment of damages.  (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
          09.16.090, 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  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 09.16.090.
          
               (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   09.16.090,  and  enter  judgment
          against  each party liable.  The court  shall
          also determine and state in the judgment each
          partys  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
          joint  and several liability, except  that  a
          party  who is allocated less than 50  percent
          of  the  total  fault allocated  to  all  the
          parties  may not be jointly liable  for  more
          than  twice the percentage of fault allocated
          to that party.
          
          The  1986  legislation was amended in 1988 when  Alaska
voters  passed the Tort Reform Ballot Initiative, which  replaced
joint  and several liability with pure several liability.53   The
new portion of the AS 09.17.080, which went into effect in 1989,54
provided:
               (d)   The  court  shall  enter  judgment
          against  each  party liable on the  basis  of
          several  liability  in accordance  with  that
          partys percentage of fault.
          
          Thus,   Alaska   has  a  system  of  pure   comparative
negligence  with  several  liability.  Alaska  Statute  09.17.060
promulgates  the  basic comparative negligence principle  that  a
claimant  cannot  recover the portion of damages attributable  to
the  claimants  own  fault for the harm  complained  of.   Alaska
Statute  09.17.080 promulgates the additional rule  that  of  the
total fault for harm attributable to defendants  not the claimant
the  court shall enter a judgment against each defendant only for
the defendants own percentage of the total fault.55
          2.   Our holding in Loeb v. Rasmussen
          The  litigation in Loeb v. Rasmussen arose from  events
that transpired on June 25, 1983.56  The Cushman Boxboy (Boxboy),
a  liquor store in Fairbanks, sold alcohol to Teresa Bouffioux, a
minor,  and  another  minor  without asking  either  customer  to
furnish  proof  of age.57  Bouffioux then drove  a  car  and  was
injured  in  a one-car accident.58  She was charged with  driving
while  intoxicated after a blood sample revealed a blood  alcohol
level   of  0.15.59   Approximately  one  year  later,  Bouffioux
committed  suicide.60  The personal representative of her  estate
sued  Leo  Rasmussen  and L & L Investments,  doing  business  as
Boxboy,  for  damages  related  to Bouffiouxs  injuries  and  her
ultimate death.61
          Boxboy argued that our judicial adoption of comparative
negligence  should  apply and allow an  allocation  of  fault  to
Bouffioux.62   Boxboy was unable to rely on Alaskas  tort  reform
statutes  because the claims in Loeb accrued in 1983 and possibly
1984,   before  the  legislatures  codification  of   comparative
negligence in 1986 and before the ballot initiative enacting pure
several liability in 1988.63
          We  rejected Boxboys argument after determining that AS
04.21.020, a statute allowing (but not providing) civil liability
for liquor licensees who furnish alcohol to persons under twenty-
one, was an exceptional statute designed to protect minors.64  We
          recognized that the application of comparative negligence was in
tension  with  Alaskas  policy against underage  drinking.65   We
concluded,  after  canvassing  other  jurisdictions,66  that  the
benefit  of  applying  our system of comparative  negligence  was
outweighed  by  the  risk of undermining Alaskas  policy  against
underage drinking.  However, we specifically declined to rule  on
the  implications of the 1988 voter initiative which enacted  our
current scheme of pure several liability.67
          3.   AS  04.21.020 is no longer an exceptional  statute
               in   light  of  the  enactment  of  pure   several
               liability.
               
          We   have  previously  recognized  that  a  system   of
comparative negligence can coexist with either joint and  several
liability  or  pure  several liability.68   However,  the  choice
between joint and several liability and pure several liability is
ultimately a choice between two fundamentally different policies.
Accordingly,  this  case  requires  us  to  consider  whether  AS
04.21.020  still represents an exceptional statute  in  light  of
Alaskas most recent tort reform initiatives.
          Before   assessing  the  continued  vitality   of   our
designation  of  AS 04.21.020 as an exceptional  statute,  it  is
important to understand the process that ultimately leads to this
designation.  A statute is not found to be exceptional merely  by
examining it in a vacuum.  Rather the exceptional designation  is
the  result  of  an  analysis  of two  applicable  but  competing
policies.  A statute is found exceptional when a court determines
that  the policy goals of one statute are so compelling that  the
risk  the  application  of another statute poses  of  undermining
those goals becomes unacceptable.69  Under these circumstances, a
court  deems  the  former  statute exceptional  so  as  to  avoid
application of the latter statute.
               a.   The  exceptional  statutes  doctrine  is   in
                    harmony with joint and several liability  but
                    is in tension with pure several liability.
                    
          The  primary  purpose  of the  doctrine  of  joint  and
several liability, the type of liability that applied in Loeb, is
to  make  the  plaintiff  whole.   Joint  and  several  liability
achieves this goal by allocating the risk of a judgment-proof  or
otherwise  immune  defendant to other co-defendants.   Thus,  the
doctrine  represents a social policy choice of making a plaintiff
whole over any concerns that excessive liability could be imposed
on an individual defendant.
          The  primary  purpose of pure several liability  is  to
shield  an individual defendant from liability in excess  of  the
defendants relative fault.  This system thus places the risk of a
judgment-proof  or otherwise immune defendant on  the  plaintiff.
As  a  result, it does not provide as strong a guarantee of  full
compensation  for  a plaintiff as a system of joint  and  several
liability.   But  by sacrificing this policy goal,  pure  several
liability   cabins  the  liability  imposed  on   an   individual
defendant.  It does so in a number of ways.  First, it blunts the
effectiveness  of  shotgun  pleading, whereby  a  plaintiff  sues
          wealthy defendants who may be only marginally responsible for the
plaintiffs  injury.   Second,  it prevents  the  use  of  wealthy
defendants as social insurers against the full loss suffered by a
plaintiff.   Finally, and most fundamentally, it  implements  the
notion  that a defendant should only pay for the defendants  fair
share of damages.
          A  system  of  joint  and several  liability  does  not
conflict  with the conclusion reached in Loeb that  AS  04.21.020
represents  an exceptional statute.  Joint and several  liability
emphasizes making the plaintiff whole.  The exceptional  statutes
doctrine  works  toward  this same  goal  by  making  the  liquor
provider  liable  not  only  for its conduct  but  also  for  the
impaired patrons subsequent conduct.
          But  Alaskas  current system of pure several  liability
conflicts  with the exceptional statutes doctrine  and  does  not
support  a  finding that AS 04.21.020 is an exceptional  statute.
The  exceptional statutes doctrine violates the three methods  by
which  pure  several  liability is meant to cabin  an  individual
defendants liability.  First, the doctrine encourages a minor  to
sue  the liquor provider even if the liquor providers culpability
was  minuscule relative to the minors fault.  Even where a minors
behavior  was  exceedingly egregious, a jury may  find  a  liquor
provider  at least partially at fault for damages resulting  from
the  minors  intoxication.   Second, it  effectively  causes  the
liquor  provider  to  provide insurance for  all  of  the  minors
conduct  after furnishing alcohol.  But if the minor  leaves  the
premises,  the  provider has no ability  to  control  the  minors
subsequent   decisions.   Finally,  and  most  importantly,   the
exceptional statutes doctrine creates immunity for one party  who
is at fault.  The liquor provider must pay not only for its share
of  damages but also for damages attributable to the minor.  This
creates  the  exact problem of immunity70 that drove tort  reform
toward  pure  several liability  by definition,  the  exceptional
statutes doctrine means that one defendant will be paying damages
attributable  to  someone  elses  irresponsibility.   Thus,   the
determination in Loeb that AS 04.21.020 is an exceptional statute
is  in  direct conflict with the policies underlying  the  voters
adoption of pure several liability.
          We  must therefore determine if the exceptional statute
designation  should  survive  this inherent  conflict  with  pure
several   liability.   Notably,  this  case  does   not   involve
conflicting  statutes.   Alaska Statute  09.17.080  unequivocally
adopts  several  liability.  Alaska Statute  04.21.020  does  not
expressly  create any exceptions to standard rules of  liability.
Rather, Loeb went beyond the statutory text and reached a holding
that  we thought best effectuated the statutes underlying policy.
There is no textual conflict between the statutory provisions  of
AS  09.17.080 and AS 04.21.020.  The only conflict arises when we
attempt  to extend and implement the policies that those statutes
represent.
          Adopting  the  Walker  and Vaughn  plaintiffs  position
would  require  that we diverge from AS 09.17.080 to  pursue  the
policy  supporting AS 04.21.020.  This path would require  us  to
abandon  the  policy  goals of AS 09.17.080: ensuring  individual
          responsibility and shielding defendants from unfair liability.
However,  adopting DelRoiss position would allow us to follow  AS
09.17.080  and  AS  04.21.020 while still,  as  discussed  below,
effectuating much of the policy underlying AS 04.21.020.71
               b.   Other  jurisdictions experiences support  our
                    conclusion  that comparative negligence  with
                    pure  several  liability is  consistent  with
                    Alaskas policy against underage drinking.
                    
          Because  minors are unable to meaningfully  assess  the
risks  associated  with the use of alcohol, Alaska  has  a  long-
standing,  strong policy against underage drinking.72   Loeb  was
decided, in part, as an effort to effectuate this policy.73   The
rule  in  Loeb  carries  out this policy  by  creating  a  strong
incentive for liquor licensees to comply with the law.
            However,  adopting comparative negligence  with  pure
several  liability  is consistent with achieving  Alaskas  public
policy  against  underage drinking.  Comparative negligence  does
not absolve the liquor licensee of liability.74  The trier of fact
will  consider the vendors actions when allocating fault  between
the minor and the vendor.75  The trier of fact will also consider
the minors actions and the minors age, maturity, and ability,  or
lack thereof, to appreciate the risks of alcohol use.76
          All  states  have  a  strong  policy  against  underage
drinking.   And  yet,  as discussed below, many  use  comparative
fault  in cases such as this.  We also recognize that some courts
have  taken  added  steps to bolster the policy against  underage
drinking  while  simultaneously applying comparative  negligence.
For  example, the New Jersey Supreme Court encourages the use  of
special  jury  instructions regarding  the  allocation  of  fault
between  a minor and dram shop in an effort to more fully address
this public policy concern.77
          4.    The  precedents  cited in  Loeb  no  longer  have
persuasive force.
          Loeb was decided at a time when states were divided  in
their  treatment of a vendors liability to a minor who  purchased
and   consumed  alcohol  from  the  vendor.78   Some  held   that
comparative  fault  principles should be  applied  to  dram  shop
litigation brought by a minor.  Others refused to allocate  fault
to a minor.  With time, many states have revisited this topic.  A
reexamination of the persuasive precedents from Iowa,  Louisiana,
Minnesota, and Florida on which Loeb relied79 reveals  a  general
erosion  of  support  for the position we  adopted  in  Loeb.   A
broader canvassing of jurisdictions confirms that our holding  in
Loeb now represents the minority view.
          The  Iowa  Supreme Court determined in  Slager  v.  HWA
Corp.80  that  the [Iowa] legislature did not intend  comparative
fault to be a defense to a dram shop action.81  But this language
must  be read in light of the fact that Iowas dram shop liability
statute  is meant to protect only those who have not participated
in  the  intoxicated persons intoxication by their complicity  or
assumption of risk.82  A person who purchases alcohol from a dram
shop  is  not  an innocent person who falls within  the  absolute
protection  of Iowas statute.83  In Iowa, a vendor can  assert  a
          minors complicity or assumption of risk, and thus bar any
recovery  by the injured minor, even though the vendor  illegally
sold alcohol to the minor.84
          The  Louisiana  case  cited for  support  in  Loeb  was
decided  based  on contributory negligence,85 but  Louisiana  now
follows  a  scheme of comparative negligence.86  Under Louisianas
current law, a liquor providers liability for an illegal sale  of
alcohol  to  a minor is governed by Louisianas general  rules  of
negligence.87  Though no appellate court has ruled on the  point,
it is clear that lower courts are allowing the consideration of a
minors comparative fault in actions brought against the vendor.88
          Loeb also cited an analogous Minnesota case considering
Minnesotas Child Labor Standards Act.89  The cases on  which  the
Minnesota  court  relied,  however, were  based  on  contributory
negligence.90   These authorities are largely inapplicable  given
Alaskas  adoption  of  comparative  negligence.   Moreover,   the
Minnesota  legislature has explicitly made  dram  shop  liability
subject  to comparative fault,91 and a Minnesota court of appeals
has  applied comparative fault principles in a suit brought by  a
minor  against an alcohol provider for damages the minor incurred
after becoming intoxicated.92
          Of  the  four jurisdictions we relied on in Loeb,  only
Florida  appears  to  have retained a general  rule  barring  the
consideration of an intoxicated minors negligence when the  minor
sues  the  dram  shop.   However, Florida,  unlike  Alaska,  only
provides  for  liability if the vendors sale  to  the  minor  was
willful.93
          We  also find that the Alaska precedents cited in  Loeb
have  lost  their value in light of Alaskas recent tort  reforms.
Loeb and its predecessors cited Vance v. United States,94 from the
federal district court in Alaska, as persuasive authority.95   In
Vance,  the  district  court considered  a  suit  brought  by  an
intoxicated  adult  against  a club  that  served  him  too  much
alcohol.96  Though no prior cases discussed the issue, the  Vance
court  assumed  that  AS  04.15.020(a),  the  predecessor  to  AS
04.21.020, was an exceptional statute designed to protect minors.97
The  court  reasoned that the statutory treatment of  intoxicated
adults should be analogous to the presumed treatment of minors.98
Accordingly, Vance was the first case in Alaska to hold  that  AS
04.15.020(a)  was  an  exceptional statute  designed  to  protect
intoxicated  adults and minors and thus that a vendor  could  not
invoke such a persons negligence as a defense.99  However,  Vance
was   decided   when   Alaska   was  a  contributory   negligence
jurisdiction.100  The exceptional statutes doctrine has more effect
in   a   contributory  negligence  regime  because   contributory
negligence is an absolute defense to liability.  Thus,  a  liquor
licensee  could invoke contributory negligence, thereby absolving
itself of civil liability for illegally selling to a minor or  an
intoxicated  adult,  undermining  the  legislatures   intent   of
preventing minors from gaining access to alcohol.
          In  addition  to  noting the erosion of  the  authority
cited in Loeb, we also note that the rule represented by Loeb has
been  subsequently rejected by other jurisdictions.  For example,
the  Utah Supreme Court overruled its prior decision in line with
          Loeb in favor of a comparative negligence system.101  The New
Mexico  Supreme Court, in a discussion that specifically rejected
Loeb,  reasoned  that legislative adoption of  comparative  fault
should  apply  in similar situations.102  Many jurisdictions  now
apply  comparative negligence in cases involving a minors alcohol
use.103
          5.   Summary
          We  designated AS 04.21.020 an exceptional  statute  in
light  of  the precedent and policy that existed at the  time  of
Loeb.   However, Alaskas most recent tort reform  rejecting joint
and  several liability and enacting pure several liability in  AS
09.17.080   changed  one  of  these  foundational  policies.   An
examination of this new statute convinces us that the exceptional
statute   designation  cannot  coexist  with  the  clear   policy
underlying  AS  09.17.080.104  Our review of other  jurisdictions
supports  our  conclusion that the holding in  Loeb  is  from  an
earlier  era.   We therefore hold that our earlier  determination
that  AS  04.21.020  was an exceptional statute  not  subject  to
comparative  negligence has been superseded by the  enactment  of
pure several liability.
     B.   The  Superior Court Did Not Err by Refusing  To  Offset
          the  Walker and Vaughn Plaintiffs Award Against DelRois
          by  the  Amount that They Received in Settlements  from
          Other Defendants.
          
          Before  trial, the Walker and Vaughn plaintiffs settled
their  claims  against Raone and Carl Bingham.   Raone  paid  the
Walker  plaintiffs105  $533,206.69 and the  Vaughn  plaintiffs106
$284,006.05.  Carl paid the Walker plaintiffs $504,315.24 and the
Vaughn  plaintiffs  $312,897.70.  Thus,  the  Binghams  paid  the
Walker  and  Vaughn plaintiffs over $1.6 million  to  settle  the
plaintiffs claims against them.
          The   superior  court  ignored  this  settlement   when
calculating  the  Walker  and  Vaughn  plaintiffs  award  against
DelRois.  Instead, the court simply noted each claimants  damages
and  imposed sixty-two percent of the liability for these damages
upon  DelRois.  For  example, the jury found  that  the  accident
caused  Robert Walker $330,000 in damages.  The court accordingly
ordered  DelRois  to  pay  Roberts estate  sixty-two  percent  of
$330,000,  plus prejudgment interest, even though the estate  had
already received a total of $518,760.96 from the settlements with
the Binghams.107
          DelRois  argues that the superior court  erred  by  not
reducing  the Walker and Vaughn plaintiffs award against  DelRois
by  the amount that the Walker and Vaughn plaintiffs received  in
their settlement with the Binghams.  DelRois relies on the common
law  policy  that  precludes  plaintiffs  from  receiving  double
recoveries, quoting this courts reference to the common law  rule
embodying  the sound public policy of permitting a  plaintiff  to
receive  only  the amount of his adjudged damages  and  no  more,
regardless  of  the source of the recovery.108  But  we  held  in
Petrolane Inc. v. Robles109 that the rule against double recovery
is  grounded in joint and several liability and does not apply in
the  context  of  pure  several liability.110   We  reached  this
          conclusion in part because AS 09.17.080 mandates the court to
enter  judgment against each party liable on the basis of several
liability  in accordance with that partys percentage of fault.111
We  also  relied  on policy reasons  encouraging  settlement  and
avoiding  windfalls to nonsettling defendants  and  followed  the
precedent  established  in  most  other  pure  several  liability
jurisdictions and section 16 of the Restatement (Third) of Torts.112
In  light  of our decision in Petrolane, we must reject  DelRoiss
argument seeking a credit for the pretrial settlements.113
     C.   Witnesses  Eric  DuBois, Michael  Poirier,  and  Andrew
          Dousette
          At  trial,  the Walker and Vaughn plaintiffs  presented
the  testimony  of  Eric  DuBois,  Michael  Poirier,  and  Andrew
Dousette.   Each witness testified that he had purchased  alcohol
from  DelRois while underage and that DelRois had not carded  him
before  these purchases.  They all testified that they knew  that
DelRois  sold  alcohol to minors.  Additionally, Andrew  Dousette
testified  that he witnessed Justin Vaughn purchase  and  consume
alcohol from DelRois the evening of the accident.
          DelRois  objected to the use of each witness.   DelRois
argued  that  the Walker and Vaughn plaintiffs had  not  notified
DelRois  of  these  witnesses until the eve  of  trial.   DelRois
contended  that  it  had insufficient time to  prepare  for  each
witness.   The  superior  court overruled  these  objections  and
allowed each witness to testify.
          On appeal DelRois again argues that it had insufficient
notice of these witnesses.  Additionally, DelRois now argues that
the testimony of these witnesses was inadmissible.
          1.   The  superior  court did not abuse its  discretion
               when  it  allowed  the testimony of  Eric  DuBois,
               Michael Poirier, and Andrew Dousette.
               
          The  Walker and Vaughn plaintiffs were unable to notify
DelRois  of their intent to present Eric DuBois, Michael Poirier,
and Andrew Dousette as witnesses until the eve of trial, February
12,  2004.   At trial, Eric DuBois explained that he  worked  for
Robert Walkers father, William, and did not inform William  until
February  10 of his experience with DelRois.  DuBois stated  that
he  overheard  William  discussing this suit  on  the  phone  and
volunteered  the  information  about  DelRois.   Michael  Poirier
testified that he was the fianc‚ of Rhonda Walker, Robert Walkers
sister,  and  stated  that he did not bring his  experience  with
DelRois  to  the Walkers attention until two weeks before  trial.
The  Walker  and Vaughn plaintiffs were aware of Andrew  Dousette
early  on in the litigation and included him on the witness list.
However, they were unable to locate him until immediately  before
trial,  at which point the Walker and Vaughn plaintiffs  hired  a
private  investigator to find Dousette.  The plaintiffs  notified
DelRois immediately after they became aware of each witness.
          The  superior courts original scheduling order required
the  parties to submit their final witness lists by August  2000,
two months before the then-scheduled trial date, but the superior
court nevertheless allowed the testimony of these late-introduced
witnesses.  The court found that the Walker and Vaughn plaintiffs
          could not have secured these important witnesses sooner and had
diligently notified DelRois as soon as possible.  The court noted
that  DelRois  had not used the new witnesses as a ground  for  a
continuance  motion and concluded that the late  introduction  of
these witnesses did not significantly prejudice DelRois.
          The  superior court took further steps to mitigate  any
prejudice these witnesses might have caused DelRois.  It  allowed
DelRois  to recall these witnesses after the court had  dismissed
them.   It  permitted DelRois opportunities  to  speak  with  the
witnesses  privately before cross-examination.   The  court  also
assisted  DelRois  in discovering information  it  might  use  to
impeach the witnesses credibility, such as convictions for crimes
of dishonesty.  Finally, the court stated that it would entertain
motions  from  DelRois for attorneys fees if DelRois  could  show
that  the  tardy  introduction of these witnesses caused  DelRois
additional expense.
          DelRois  appeals the superior courts decision to  allow
these  witnesses  to testify.  The Walker and  Vaughn  plaintiffs
answer  that the trial court appropriately considered  the  costs
and benefits of allowing them to testify.
          We  review  a  trial courts decision to depart  from  a
pretrial discovery schedule for an abuse of discretion.114  We also
review  for  abuse  of  discretion a trial  courts  choice  of  a
particular sanction for a discovery violation.115
          The Alaska Rules of Civil Procedure provide the process
by  which parties notify each other of witnesses that they intend
to  present  at  trial.  Under these rules, the trial  court  may
establish deadlines after which parties generally may not add new
witnesses.116  Civil Rule 16(e) states that courts may only modify
these deadlines to prevent manifest injustice.
          Trial courts are afforded broad discretion to determine
whether  a  situation entails a manifest injustice sufficient  to
justify departure from pretrial scheduling orders.117  In  making
such  a  determination, courts should consider  several  factors,
including the prejudice to the opposing party, the importance  of
the  evidence to the party seeking to introduce it,  and  whether
that party could have more diligently obtained that evidence with
earlier notice.118
          After reviewing the record as a whole and analyzing the
factors  relevant  to manifest injustice, we  conclude  that  the
superior court did not abuse its discretion by deviating from its
pretrial witness order.  The superior court reasonably found that
the  danger  of  surprise or prejudice to DelRois  was  small.119
Moreover,  as explained above, the court took steps  to  minimize
any  prejudice that might have occurred.  It also found that  the
witnesses  would provide probative testimony for the  Walker  and
Vaughn  plaintiffs  regarding the likelihood  that  alcohol  from
DelRois  was consumed on the night of the accident and  that  the
witnesses could not have been secured with greater diligence.
          For  the  same  reasons, DelRoiss alternative  argument
that the superior court erred by not precluding the testimony  of
witnesses  introduced  in violation of its discovery  order  also
fails.   Civil Rule 37 grants courts broad discretion to  fashion
remedies for discovery order violations, including the option  of
          excluding evidence procured in violation of a discovery order.120
In  fashioning such remedies, Rule 37 commands courts to consider
the  nature and severity of the violation, the prejudice  to  the
opposing  party,  and  any other factors  it  deems  appropriate.
Preclusion  of  witness testimony is a harsh remedy,  appropriate
only if noncompliance is severe or willful.121  As explained above,
the  superior  court appropriately considered  the  prejudice  to
DelRois, the importance of the testimony, and the diligence  with
which the Walker and Vaughn plaintiffs procured these witnesses.
          2.   The  content  of  the  testimony  did  not  create
               reversible error.
          The Walker and Vaughn plaintiffs used the testimony  of
Eric DuBois, Michael Poirier, and Andrew Dousette to support  the
proposition  that  DelRois sold alcohol to the decedents  on  the
night of the accident.  This testimony supported their theory  of
punitive  damages  because,  if true,  it  demonstrated  reckless
behavior by DelRois.  The Walker and Vaughn plaintiffs also  used
this testimony to rebut Rose Sowinskis anticipated testimony that
DelRois does not sell alcohol to minors.122
          DelRois  challenges the admissibility of this testimony
on  appeal.   It  argues that the only possible purpose  of  this
testimony was to prove that DelRois sold alcohol to the decedents
on  the  night  of  their  accident.   DelRois  argues  that  the
testimony constituted impermissible character evidence because it
was evidence of DelRoiss past behavior and was used by the Walker
and  Vaughn plaintiffs to show conformity therewith on the  night
of  the  accident.  DelRois further asserts that  this  testimony
prejudiced its case.
          The  Walker  and  Vaughn  plaintiffs  answer  that  the
superior court properly admitted the testimony.  They argue  that
the  testimony  rebutted DelRoiss argument that  it  consistently
carded patrons and did not provide alcohol to minors.  The Walker
and Vaughn plaintiffs also argue that this testimony was relevant
to  their  claim for punitive damages.  As they argued at  trial,
they  sought to use DelRoiss pattern of conduct as evidence  that
DelRois sold alcohol to the decedents with reckless indifference.
          When  the admissibility of evidence turns on a question
of  fact, we review a trial courts decision on admissibility  for
an abuse of discretion.123  However, when admissibility turns on a
question of law, we use our independent judgment in reviewing the
trial courts ruling.124
          Initially, we note that DelRois did not object  to  the
admissibility of this testimony at trial.  DelRois objected  only
to  the  Walker  and  Vaughn  plaintiffs  presentation  of  these
witnesses  on such short notice.  Of course, DelRois  may  escape
its  failure  to  object to this testimony if its  admission  was
plain error and if there was a high likelihood that injustice has
resulted.125   We  find no such grounds for  reversal  for  three
reasons.126
          First, DelRois appeared to consent to the admissibility
of  this  testimony to prove that it provided alcohol to  minors,
stating if they got one or two witnesses that will say, Yeah,  we
bought  at Del Rois, thats one thing, but if they start  bringing
in a parade of people, then it is a whole different thing.  Given
          this apparent consent, and the fact the now-challenged testimony
is  of the type that DelRois said it would not object to, DelRois
has a heavy burden to convince us to follow a different path.
          Second,  the  Walker  and Vaughn  plaintiffs  used  the
testimony,  in part, to show a pattern of reckless alcohol  sales
to  minors in support of their punitive damages claim.  This  was
permissible  other acts evidence used to demonstrate  potentially
reckless behavior by DelRois.127  The superior court did not give a
limiting  instruction  to  the jury  about  the  permissible  and
impermissible  uses of this testimony.  Alaska Rule  of  Evidence
105  states that when evidence is admissible for one purpose  but
not  another, the court shall restrict the evidence to its proper
scope and instruct the jury accordingly  but only upon request.128
Here,  DelRois did not request a limiting instruction,  and  thus
cannot complain that none was given.
          Third,  we  affirm  the superior  courts  admission  of
DuBoiss,    Poiriers,  and  Dousettes  testimony  because   their
testimony  did  not substantially prejudice DelRois.   While  the
trial court properly found that these witnesses were important to
the  Walker  and  Vaughn  plaintiffs  case,  the  most  important
components  of  the  testimony were not general  habit  evidence.
Rather,  Andrew  Dousette testified that on the  evening  of  the
accident,  he  witnessed  Justin  Vaughn  purchase  alcohol  from
DelRois.   Justin Rucker, another witness at the trial, testified
that he independently purchased alcohol from DelRois on the night
of  the  accident  and joined a number of his friends,  including
Justin  Vaughn and possibly Robert Walker, at a party that night.
This evidence is probative of whether DelRois sold alcohol to the
decedents  the  night of the accident and would be sufficient  to
support  the jurys findings that DelRois had done so.  Therefore,
to the extent the admission of propensity evidence was erroneous,
we  hold that it likely did not affect the substantial rights  of
the parties.129
     D.   The Jury Instructions and Special Verdict Forms
          After  the  close  of trial, the court  gave  the  jury
written instructions and provided a set of special verdict forms.
These instructions and verdict forms were the product of extended
debate between the parties.  DelRois claims that a number of  the
instructions and forms were erroneous.130
          We  review jury instructions and special verdict  forms
de  novo.131   To overturn a jury instruction or special  verdict
form,  we must conclude not only that the instruction or  special
verdict  form  was legally erroneous, but also that  the  verdict
would   probably  have  been  different  but  for  the  error.132
Additionally,  if a party fails to object to a jury  instruction,
we  will  review the challenge on appeal only for plain error.133
Where  a  jury  instruction or special verdict  form  is  legally
correct  and  the question is whether the evidence justified  its
use, we review the superior courts use of the instruction for  an
abuse of discretion.134
          1.   The  superior court erred by allowing the jury  to
               award  damages to the decedents for their loss  of
               enjoyment of life.
               
          Over  DelRoiss objection, the jury instructions allowed
          the jury to award the estates of the decedents the value of the
loss  of enjoyment of life from the life the decedents would have
enjoyed.   The special verdict forms similarly provided for  such
an award.  The jury awarded each estate at least $10,000 for loss
of enjoyment of life.135
          DelRois   now   reasserts  its   challenges   to   this
instruction  and  special  verdict  form.   DelRois  argues  that
[t]here can be no loss of enjoyment of life after death, as  that
is something only a living person can experience.
          When  a  plaintiffs  death results  from  a  defendants
tortious conduct, AS 09.55.580(a) allows the plaintiff, through a
personal representative, to assert a claim for wrongful death and
to  recover any damages the court or jury may consider  fair  and
just.   The  statute not only creates a wrongful death  cause  of
action,  but  also  regulates the damages a court  may  award.136
Subsection  (a)  clearly limits the damages  recoverable  by  the
estate  of  a  decedent without dependents to pecuniary  damages:
When  the decedent is survived by no spouse or children or  other
dependents, the amount recovered shall be administered  as  other
personal  property  of  the decedent  but  shall  be  limited  to
pecuniary loss.137  Because neither decedent had any dependents,138
AS  09.55.580(a) limited the recovery of the estates to pecuniary
harm,  which  does not include intangible loss  of  enjoyment  of
life.139
          In  light of our holding, the awards for both past  and
future  non-economic loss for the Estates of  Robert  Walker  and
Justin  Vaughn  must  be  vacated.  The awards  for  future  non-
economic loss were purely for the decedents loss of enjoyment  of
life.  While the instructions for past non-economic loss included
some permissible considerations  for example, pre-death pain  and
suffering under the survival statute AS 09.55.570140  these awards
cannot   be  sustained  because  the  instruction  also   allowed
assessment of impermissible damages for the loss of enjoyment  of
life.
          2.   The  superior court erred by instructing the  jury
               that it could award nonpecuniary damages to Robert
               Walkers sister, Rhonda.
               
          The  superior court instructed the jury that  it  could
compensate  each  plaintiff for the sorrow, mental  distress  and
grief  that they may have suffered or will suffer because of  the
death  of  Robert Jason Walker and Justin Daniel Vaughn. DelRoiss
attorney objected, stating that I dont want to belabor this,  but
I  just  want to make sure the record reflects that I  object  to
Rhonda  Walker  being included here.  In response,  the  superior
court  stated,  Im  permitting it based on the testimony  that  I
heard.   The  jury awarded $100,000 to Rhonda for  her  emotional
harm resulting from her brothers death.
          On  appeal, DelRois argues that in wrongful death cases
where  the decedent dies without dependents, Alaska permits  only
parents to recover damages for their emotional harm.
          Both  parties agree that Alaska law does not  expressly
recognize  a  nondependent siblings right to recover nonpecuniary
damages  in  a  wrongful  death case.  As  described  above,  the
          statute providing a wrongful death cause of action, AS 09.55.580,
does  not  permit  any recovery of nonpecuniary harms  where  the
decedent dies without dependents.
          Despite  this  statutory prohibition,  the  Walker  and
Vaughn  plaintiffs argue that we should create a new  common  law
cause  of action for the siblings of wrongful death victims.   We
decline  the Walker and Vaughn plaintiffs invitation to create  a
new  cause  of action.  Alaska Statute 09.55.580 broadly  governs
the  recovery  that may be had by the victim of a wrongful  death
and  by  his close relatives.  It unambiguously bars nondependent
siblings from recovering nonpecuniary damages.141  Alaska Statute
09.15.010, which allows nondependent parents of a wrongful  death
victim  to  recover nonpecuniary damages, is an exception  to  AS
09.55.580, but it does not apply to siblings of a wrongful  death
victim.   Thus, the Alaska statutes do not allow the nondependent
sibling  of  a  wrongful death victim to assert a wrongful  death
claim for nonpecuniary harm.142
          The Walker and Vaughn plaintiffs also argue that Rhonda
had a viable claim for negligent infliction of emotional distress
(NIED)  and thus that the superior court properly allowed her  to
collect  damages  for  her emotional harm.  DelRois  acknowledges
that  Rhonda  may  have  had a viable NIED  claim.   A  negligent
defendant  breaches the standard of care owed to a plaintiff  who
suffers  emotional  harm after witnessing physical  harm  to  her
loved  ones  if three conditions are met:  (1) the plaintiff  was
located  near  the scene of the accident; (2) the emotional  harm
resulted  directly  from  observing the scene  of  the  accident,
rather  than  learning  of it later; and (3)  the  plaintiff  and
victim were closely related.143  We have repeatedly held that the
plaintiff need not actually witness the accident and that  merely
witnessing an injured or dead family member at the scene  of  the
accident is sufficient to assert an NIED claim.144  Also,  courts
widely hold that siblings of the accident victim are sufficiently
closely related to assert NIED claims.145
          Here,  Rhonda arrived at the scene of the  accident  in
time  to view her brothers dead body.  At trial, Rhonda testified
as follows:
               Q.  Did you say the police showed up?
          
               A.   Yeah, at 6:00 in the morning.   And
          they  told me that they needed to talk to  my
          parents.   So  I told my parents,  you  know,
          that  they  were  there and they  were  there
          about my brother.  And I went to the bathroom
          and  when  I  came up they were  my  mom  was
          screaming  and crying and I didnt  know  what
          was  going on, and they told me that  he  had
          gone into an accident and he died.
          
               And I didnt believe them, so we went  to
          the  accident.  And from the top of the  hill
          all  you could see was two bodies covered  in
          yellow tarps.  And when we walked down, I was
          standing over my brother and I didnt know  it
               was him.  They wouldnt let us look at him.
          
               All  I could see was his shoes.  He  was
          on  his side, his left side.  And Justin  was
          under the other tarp and all I could see  was
          blood all around where his head would be.
          
She  also testified that she suffered emotional harm as a result,
stating, I know it has an impact on me, because I have nightmares
over it.  Thus Rhonda may have had a viable NIED claim.
          However,  the  courts instructions  to  the  jury  were
incorrect if Rhondas only claim was NIED.  As DelRois argues, the
special verdict form . . . grouped damages for emotional distress
and  loss of consortium so it is impossible to determine what the
jury  awarded,  making  the  entire award  subject  to  reversal.
Plaintiffs  asserting NIED claims may only  recover  damages  for
their  emotional  harm if the harm results from  a  view  of  the
injured  victim  soon after the accident.146   Here,  the  courts
special verdict forms broadly allowed the jury to award to Rhonda
Non-Economic  Loss, including emotional distress, sorrow,  mental
anguish  and  grief,  loss of society, comfort,  care,  guidance,
love,   support,   service  and  assistance,  companionship   and
consortium.  It  did  not  distinguish  between  emotional   harm
resulting  from  viewing  the victim at the  accident  scene  and
emotional harm resulting from Rhondas loss of her brother.147
          The  superior  courts  jury  instructions  and  special
verdict  forms  with  respect to Rhondas emotional  damages  were
erroneous because the jury was permitted to award Rhonda  damages
to  which  she  was  not  entitled  under  an  NIED  theory.   We
accordingly vacate the award to Rhonda.
          3.   The  superior court erred by instructing the  jury
               that  it  could  award damages  to  the  decedents
               parents representing their loss of consortium  for
               the  period after the decedents would have reached
               the age of majority.
               
          Over  DelRoiss  objection, the superior courts  special
verdict form provided separate sections for the jury to award the
decedents parents nonpecuniary damages representing their  losses
during  the periods after which the decedents would have  reached
the  age  of majority.  The jury accordingly awarded $100,000  to
each  of the four parents for their nonpecuniary loss during this
period.
          DelRois  argues  that  parents  generally  may  recover
damages  for  the  death of their child that only  represent  the
period  of  time before that child reaches the age  of  majority.
The  Walker and Vaughn plaintiffs answer that the superior  court
properly  allowed  the decedents parents to recover  nonpecuniary
damages for all time periods after the accident.  The Walker  and
Vaughn plaintiffs argue that limits on a parents right to recover
damages  for  the  death of a child after the  child  would  have
reached the age of majority are based on the outmoded theory that
parents have a right to the earnings of their minor children.
          The  relevant statute, AS 09.15.010, does  not  clearly
limit  the  time periods for which the parents of minor  children
          may recover loss of consortium damages.  The statute provides
that [a] parent may maintain an action as plaintiff for the . . .
death  of  a  child below the age of majority.148   We  have  not
addressed  whether these damages may include loss  of  consortium
for  periods  of  time after the child has  reached  the  age  of
majority.149
          The  policy  behind AS 09.15.010 suggests that  parents
may  not  recover such damages.  Indisputably, this statute  does
not allow a parent to recover damages resulting from the loss  of
a  child  who  died during adulthood.  It would be  anomalous  to
allow parents whose children died while minors to recover loss of
consortium damages for periods during which those children  would
have been adults while denying the same recovery to parents whose
children  died while adults.150  Accordingly, the superior  court
erred  by  instructing the jury that it could award the decedents
parents  nonpecuniary  damages  representing  losses  during  the
periods after which the decedents would have reached the  age  of
majority.
          4.   The superior court did not abuse its discretion by
               instructing  the  jury that  it  could  award  the
               decedents parents damages to compensate them for a
               loss of the decedents support and service.
               
          The  superior court instructed the jury that  it  could
award the parents of Robert Walker and Justin Vaughn a number  of
types  of  non-economic damages, including loss of the  decedents
support  and  service.  The special verdict forms instructed  the
jury  similarly.  However, the verdict forms provided only spaces
for  the  jury to award general non-economic damages; it did  not
differentiate   between   categories  of  non-economic   damages.
Accordingly, the jury awarded non-economic damages to each parent
without  specifying the particular non-economic losses for  which
it intended to compensate the parent.
          DelRois  claims  that  the  superior  court  erred   by
instructing the jury that it could award damages for lost support
and  service to the plaintiffs.  DelRois argues that  Alaska  law
does  not  permit juries to award nonpecuniary damages  for  lost
support and service to parents of deceased children under a  loss
of  society  theory.  DelRois also reiterates its  earlier  point
that  the  wrongful death statute, AS 09.55.580, does not  permit
nondependent plaintiffs to recover any pecuniary damages.
          As  an  initial matter, DelRoiss appeal on  this  issue
pertains  only to the jurys award to the decedents  parents,  not
its  award to Rhonda.  As explained above, the statute  does  not
entitle  Rhonda to any award of such damages.  Moreover  DelRoiss
appeal  on  this  issue  is  relevant only  to  awards  under  AS
09.15.010   and   the  wrongful  death  statute,  AS   09.55.580.
Accordingly, the award to Rhonda is irrelevant to DelRoiss appeal
on this issue.
          With   regard  to  the  remaining  challenged   awards,
DelRoiss  argument  is  unpersuasive. As the  Walker  and  Vaughn
plaintiffs  note, DelRois has waived any particular objection  to
an  award  for  loss of the decedents support or service  to  the
parents  by  not making an objection on the record.  Accordingly,
          we only review superior courts special verdict form for plain
error.151  Even if DelRois had not waived its objection, it is not
clear that the inclusion of these two additional types of damages
caused DelRois any prejudice.152  The special verdict form allowed
the jury to award each personal plaintiff only Non-Economic Loss.
As  examples  of  Non-Economic  Loss,  the  form  listed  several
possible  categories  of  losses, including  emotional  distress,
sorrow, mental anguish and grief, loss of society, comfort, care,
guidance,  love,  support, service and assistance,  companionship
and consortium.  Support and service are only two of the fourteen
examples of non-economic damages given by the form, and the  form
does  not state that these examples are exhaustive.  Furthermore,
these are quite general examples; it is not clear how different a
loss of support is from a loss of companionship and guidance.  It
is  unlikely  that  the jurys award would have differed  had  the
superior   court  omitted  these  two  examples   of   acceptable
categories of damages.
          Moreover, it would not have been a legal error for  the
superior  court to allow the jury to award pecuniary  damages  to
the  parents  of  the  decedents if supported  by  the  evidence.
Alaska  Statute 09.15.010 creates an independent cause of  action
for  parents to recover losses resulting from the death of  their
children:  A parent may maintain an action as plaintiff  for  the
injury  or death of a child below the age of majority.   We  have
held  that  the broad language of the statute permits parents  of
deceased  children  to recover nonpecuniary damages.153   DelRois
reads  our  prior holding as prohibiting parents from  recovering
pecuniary  damages  under  AS  09.15.010.   However,  the   broad
language  of that statute and its original function   to  provide
parents  of deceased children with pecuniary damages  contradicts
this argument.
          5.   The superior court did not abuse its discretion by
               submitting to the jury the question of whether the
               decedents suffered before dying.
               
          At  trial,  the Walker and Vaughn plaintiffs  presented
Dr. Franc Fallico, a forensic pathologist, who testified that  he
could not tell whether the boys had suffered any pain after their
accident but before their deaths.  Dr. Fallico testified that the
boys died within seconds or minutes of the accident.  However, he
stated  that  he  could  not tell whether they  were  unconscious
during  this  period  and  thus felt no  pain,  or  whether  they
suffered greatly.
          The  superior court instructed the jury that  it  could
award the decedents estates damages as compensation for any  pain
the decedents suffered before they died. The special verdict form
that  the superior court gave the jury instructed them similarly.
The  jury awarded each estate $10,000 for the decedents pain  and
suffering and pre-trial loss of enjoyment of life.
          On appeal, DelRois claims that the superior court erred
by  submitting to the jury the question of whether the  decedents
had suffered before dying.  DelRois argues that the only evidence
relating  to  the question of whether the decedents suffered  was
the testimony of Dr. Fallico, who specifically testified that  he
          could not tell whether they did. DelRois concludes that there was
insufficient evidence of the decedents suffering to submit such a
question to the jury.
          The  Walker  and  Vaughn  plaintiffs  answer  that  Dr.
Fallicos testimony was sufficient evidence from which to conclude
that  the  decedents suffered before dying. They also argue  that
DelRois  has  waived  any challenge to this jury  instruction  by
failing to object to it at trial.
          As an initial matter, DelRois has waived this objection
by  failing  to  make it at trial.  Accordingly,  we  review  the
superior  courts special verdict form allowing for  such  damages
only for plain error.154
          Trial  courts have broad discretion to submit questions
of   fact   to  juries.   Courts  need  only  make  a   threshold
determination that a reasonable jury could find for either side.155
In  making such a determination, courts should view facts in  the
light  most  favorable to the party in favor  of  submitting  the
issue  to  the jury.156  We review such a determination only  for
abuse  of  discretion.157  As we have previously  explained,  the
combination  of  these two standards makes  it  difficult  for  a
litigant  to  successfully challenge a trial courts  decision  to
submit a question to the jury: The deferential standard of review
and  the  substantive standard combine to give the [appellant]  a
difficult  task in convincing us that the superior  court  abused
its discretion.158  The application of the plain error standard of
review here compounds the challenge for DelRois on appeal.
          Given  this combination of standards, we conclude  that
the  superior  court  acted  within  its  permissible  range   of
discretion  when  it  allowed the jury to determine  whether  the
decedents  had  suffered  before dying.  Dr.  Fallicos  testimony
evidences  at  least a reasonable possibility that the  decedents
suffered  before dying.  Further, the jury had an opportunity  to
review  the  evidence  concerning the  nature  of  the  decedents
injuries.   Based  on  this evidence, the jury  could  apply  its
collective knowledge and experience to the question of  momentary
suffering.
          However,   despite   our   determination   that    this
instruction was not erroneous, the award of damages for pre-death
pain cannot be sustained.  As we have already stated, the $10,000
awards  of  past  non-economic losses to the  Estates  of  Robert
Walker  and  Justin Vaughn must be vacated because  they  include
loss of enjoyment of life damages.159
          6.   DelRoiss  challenge  to the NIED  instructions  is
               unavailing.
          The  superior  court allowed the jury to  award  Robert
Walkers  parents, William and Donna, and sister,  Rhonda,160  and
Justin  Vaughns father, Donald, emotional damages that  they  had
incurred after viewing the scene of the accident, under  an  NIED
claim.161  The superior court instructed the jury that  it  could
award  the  Walkers and Donald Vaughn damages for  the  emotional
distress  they  experienced as a direct result of witnessing  the
scene of the accident.  The special verdict form also provided  a
place  for  the jury to award the Walkers and Donald Vaughn  such
non-economic loss, although it did not distinguish between  those
          suffered as a result of witnessing the accident scene and damages
suffered as a result of losing a family member.  The jury awarded
each of these plaintiffs damages for their non-economic losses.
          DelRois  claims that the jury instructions and  special
verdict  form  were  legally  inadequate  instructions   on   the
requirements  for  an NIED claim.  Specifically,  DelRois  argues
that  the  court  failed  to instruct  the  jury  that  emotional
damages,  such  as  mental suffering and psychological  injuries,
must be severe to be recovered through an NIED claim.
          As an initial matter, DelRois has waived this objection
by  not  making  it  at trial.  In any case, the  superior  court
instructed  the jury that it could only compensate the plaintiffs
for  severe  or serious emotional damages incurred by  witnessing
the accident scene.  In jury instructions 28 and 29, the superior
court  instructed  the  jury  that it  could  award  damages  for
emotional  distress that they have suffered or will suffer  as  a
result  of witnessing the scene of the accident.  Then,  in  jury
instruction  30,  the  superior  court  instructed  the  jury  as
follows:
               The   term   emotional  distress   means
          emotional   distress  which  is   severe   or
          serious.    Severe   or   serious   emotional
          distress  may  be  found where  a  reasonable
          person, normally constituted, would be unable
          to  adequately cope with the distress  caused
          by  the  circumstances of the case.  Examples
          of  serious  emotional distress  may  include
          neuroses,   psychoses,  chronic   depression,
          phobia,  post traumatic stress disorder,  and
          shock.      However,    temporary     fright,
          disappointment, and regret do not suffice  as
          severe or serious emotional distress.
          
This  instruction repeats nearly verbatim language in Chizmar  v.
Mackie162 discussing the requirement that emotional damages must be
severe to be recoverable in an NIED bystander claim.163  As such,
the instructions are legally adequate.
          7.   The  superior court did not commit plain error  in
               its  instructions regarding the present  value  of
               awards for future economic damages.
               
          Jury  instruction  25 allowed the jury  to  award  each
estate  future  economic damages in sums of present  value.   The
special  verdict form similarly allowed the jury  to  award  such
damages, but did not indicate that the damages were to be reduced
to  present value.  The jury awarded the Estate of Robert  Walker
$300,000  and the Estate of Justin Vaughn $400,000 to  compensate
for  the decedents lost future earnings.  DelRois claims that the
superior  court erred by failing to instruct the jury  to  reduce
any  amount it awarded to present value.  DelRois notes  that  AS
09.17.040(b)  requires  a fact finder to reduce  future  economic
damages  to  present value absent an agreement by the parties  to
apply the rule adopted in Beaulieu v. Elliott.164
          DelRois  did  not  make  this objection  at  trial  and
          therefore the instruction will be reviewed only for plain error.
We  note that jury instruction 25 indicated that the jury  should
reduce economic damages to present value (economic loss . . .  is
to  be  found  in sums of present value).  We therefore  construe
DelRoiss  argument  to be that the court inadequately  instructed
the  jury about inflation and reducing the award to present value
with  respect to future damages, not that it gave no  instruction
on  present value. We are unable to conclude that the instruction
was  so  inadequate as to amount to plain error.  The instruction
conveyed the idea that economic damages were to be calculated  in
terms  of  present  value.   If  DelRois  wanted  an  instruction
detailing a method for calculating present value, it should  have
requested one.
V.   CONCLUSION
          For the reasons stated:
     (1)  The judgment dismissing the claims against the State of
Alaska is affirmed.
     (2)  The judgment against DelRois in favor of the Walker and
Vaughn plaintiffs is vacated.  On remand it should be modified to
reflect DelRoiss thirty-five percent fault for the accident.
     (3)  In addition:
          (a)   As to the Estate of Robert Walker, on remand  the
court  should  modify the judgment by deleting from  the  verdict
both  awards  of  $10,000 that include a component  for  loss  of
enjoyment of life.
          (b)   As to the Estate of Justin Vaughn, on remand  the
court  should  modify the judgment by deleting from  the  verdict
both  awards  of  $10,000 that include a component  for  loss  of
enjoyment of life.
          (c)  As to Rhonda Walker, the judgment is vacated.
          (d)   As  to  William and Donna Walker, on  remand  the
court should modify their judgments by deleting the post-majority
awards of non-economic damages of $100,000 in each judgment.
          (e)  As to Donald and Donna Vaughn, on remand the court
should  modify  their  judgments by  deleting  the  post-majority
awards of non-economic damages of $100,000 in each judgment.
     (4)   The awards of interest and attorneys fees are vacated.
On remand the court should modify these awards as required by the
changes to the judgment amounts mandated by this opinion  and  by
the result of the partial new trial.165
     (5)  On remand under proper jury instructions:
          (a)   The Estates are entitled to a new trial on  their
claims for pre-death pain and suffering under AS 09.55.570; and
          (b)   Rhonda Walker is entitled to a new trial  on  her
claim for negligent infliction of emotional distress.
          AFFIRMED  IN  PART, VACATED IN PART, and  REMANDED  for
further proceedings.
FABE,   Chief  Justice,  with  whom  CARPENETI,  Justice,  joins,
dissenting.
          Today  the court effectively overrules its decision  in
Loeb  v.  Rasmussen,1 which held that a liquor  licensee  is  not
entitled  to  assert the comparative fault of the minor/consumer,
in  an  action  for damages resulting from the unlawful  sale  of
intoxicating liquor.2  Because the issues that the court grapples
with were already addressed and decided in Loeb, and because I do
not  believe  that  the  high threshold  for  overruling  settled
precedent  has  been met, I would adhere to Loeb and  affirm  the
superior courts decision to hold the liquor store liable for  the
deceased minors share of the fault for the accident.
          Stare   decisis  requires  that  we  overrule  a  prior
decision only when clearly convinced that the rule was originally
erroneous  or  is no longer sound because of changed  conditions,
and  that more good than harm would result from a departure  from
precedent.3   We  have  stated  that  a  prior  decision  may  be
abandoned because of changed conditions if related principles  of
law  have so far developed as to have left the old rule  no  more
than  a remnant of abandoned doctrine, [or] facts have so changed
or come to be seen so differently, as to have robbed the old rule
of significant application. 4
          The  court  concludes that Loeb has been superseded  by
the  enactments  of AS 09.17.060, which codified  our  system  of
comparative  negligence, and AS 09.17.080, which  instituted  our
system  of  pure  several liability.  The court states  that  the
liquor vendor defendant in Loeb was unable to rely on these  tort
reform  statutes  because the claims in that  case  arose  before
these  statutes  were enacted.5  But the Loeb court  specifically
addressed  the policy questions raised by comparative negligence,
and the subsequent adoption of a scheme of pure several liability
has  not robbed [Loeb] of significant application or rendered  it
no more than a remnant of abandoned doctrine.
          Comparative  negligence  was  judicially  adopted  long
before   the   Loeb  claims  arose,  and  the  Loeb  court   also
specifically  addressed its codified version.6   The  Loeb  court
concluded that AS 09.17.060 was not at all inconsistent with  our
past  decisions, holding that the laws prohibiting  the  sale  of
alcohol  to minors and obviously intoxicated persons are intended
to  place  the entire responsibility for subsequent harm  on  the
violator.7  In other words, the Loeb court specifically  rejected
the  argument, made by the Loeb dissent8 and revived here by  the
court,9  that  the  adoption of a comparative  negligence  system
robbed  AS 04.21.020 of its character as an exceptional  statute,
which  for  policy reasons confers extra liability on a  licensed
liquor  vendor when harm results from its illegal sale of alcohol
to  a  minor.   The  Loeb court reasoned that  children  are  not
competent  to assess in any meaningful way the risks involved  in
the  use of alcohol and that while a liquor vendor might be  able
to exploit this lack of competence by selling alcohol to a minor,
there was no legitimate reason to allow the vendor to exploit  it
further, by having its liability to the plaintiff reduced because
[the  minor] failed to exercise the same degree of care  for  her
own  safety  reasonably expected of one more able to  assess  the
          risks, when she purchased and used [the liquor vendors]
product.10  This reasoning retains its strength today and  is  as
applicable in this case as it was in Loeb.
          While  the  Loeb  court addressed the effect  that  the
adoption  of  comparative negligence had on cases  involving  the
sale  of  alcohol to minors, it did not specifically address  the
effect  of the adoption of pure several liability.  It determined
that  there  was  no need to do so because that  case  [did]  not
involve  multiple  defendants.11  It  went  on  to  explain  that
[m]ultiple  defendants might complicate a case  when  an  injured
third  party brings action against both the minor and the  liquor
licensee,  or  when more than one liquor licensee has  unlawfully
provided  the  minor with liquor.12  As the court  recognizes  in
this  case, the adoption of pure several liability means that  of
the  total  fault  for harm attributable to defendants   not  the
claimant  the court shall enter a judgment against each defendant
only for the defendants own percentage of the total fault.13  But
here, as in Loeb, the estates of the deceased minors are the only
claimants  and only one defendant, the liquor vendor, remains  in
the case.  The issue before the court is, precisely as it was  in
Loeb,  simply  whether  the  liquor vendor  defendants  liability
should  be  reduced  by  the  amount  of  the  intoxicated  minor
claimants  comparative negligence, not how  liability  should  be
apportioned between multiple defendants.  The Loeb court  appears
to have assumed that the adoption of pure several liability would
not  change  the  outcome of such a case.  I  believe  that  this
assumption was correct.
          The  adoption of pure several liability does not  alter
the  rationale behind the Loeb decision and thus should not alter
the  outcome of this case.  Adoption of a scheme of pure  several
liability ensures that a liquor vendor cannot be held liable  for
all  of  the damages in a situation where multiple actors are  at
fault,  such  as  other drivers in a case involving  a  multiple-
vehicle  car  accident, or the Cancels and the  Binghams  in  the
instant  case.   But  where,  as here,  a  single  liquor  vendor
illegally sold alcohol to minors who became intoxicated and acted
irresponsibly,  the Loeb exception should continue  to  hold  the
liquor  vendor  liable for the intoxicated minors  share  of  the
fault in order to accommodate our judgment that children are  not
competent  to assess in any meaningful way the risks involved  in
the  use  of  alcohol.14  If adoption of a comparative negligence
system  did not eliminate this exception and the policy reasoning
behind  it,  adoption  of  pure  several  liability  should   not
eliminate it either.
          The  Loeb  court recognized that there was a  split  of
authority  in  this  area  of  law  in  other  jurisdictions  and
nonetheless  concluded  that  its  holding  best  comports   with
existing Alaska law and sound public policy.15  The court  states
today  that  Loeb now represents the minority view.16   But  Loeb
represented  the minority view at the time it was decided.   Loeb
was  a  decision  grounded in Alaskan law  and  policy,  not  the
adoption of the decisions or reasoning of other states.
          The  court discusses the state of dram shop law in  the
four  jurisdictions whose decisions were cited in Loeb:  Florida,
          Iowa, Minnesota, and Louisiana.  Florida retains a system of dram
shop liability similar to Loebs.17  As was the case when Loeb was
decided, Iowa does not apply comparative negligence in dram  shop
actions  and holds liquor vendors entirely liable for the actions
of  intoxicated patrons who were sold to illegally.18   But  Iowa
only  allows suits by innocent parties.19  The dram shop  statute
in  Minnesota now contains language that specifically limits  the
liability  of  liquor vendors based on comparative negligence  or
related  principles20   the type of language  Alaskas  dram  shop
statute did not contain when Loeb was decided, and still does not
contain  today.   Though  no appellate court  has  addressed  the
issue, Louisiana does seem to have changed course since Loeb,  as
the  court  notes,21  apparently  deciding  that  adoption  of  a
comparative  negligence  system should reduce  a  liquor  vendors
liability  by  the  amount of an intoxicated  minors  comparative
fault.    But  this  is  precisely  the  conclusion   that   Loeb
rejected.22   These developments in a handful  of  states  hardly
constitute  a  general  erosion  of  support  for  Loeb  or   its
reasoning.23   Loeb  remains  a minority  position,  grounded  in
Alaskan  law  and  policy, as it was at  the  time  that  it  was
decided.   Thus  no significant changed conditions24  exist  that
justify overruling it.
          Finally,  the  court simply has not  addressed  whether
more   good  than  harm  would  result  from  a  departure   from
precedent.25  I am not convinced that more good than  harm  would
result from reducing the consequences faced by liquor vendors who
illegally  sell alcohol to minors.  While the Loeb rule  may,  as
the  court  points  out, cause[] the liquor provider  to  provide
insurance   for  all  of  the  minors  conduct  after  furnishing
alcohol26  illegally,  a  liquor vendor can  quite  easily  avoid
shouldering   this   responsibility  by   consistently   checking
identification and refusing to furnish alcohol to minors.
          For these reasons, I respectfully dissent.
_______________________________
     1    822 P.2d 914 (Alaska 1991).

     2     In  1996 DelRois was owned by Rose Sowinski and  James
McGill.   Roses surname later changed to Gama.  Carol McGill  was
also a named defendant in the case.

     3     It  appears that at some point Vaughn was  driving  to
escape from two other parties to the litigation, Sandra K. Cancel
Shell  and  Emmanuel Cancel, who were chasing the ATV in  another
vehicle.  This chase is of negligible relevance to the issues  on
appeal.

     4     There  is  no agreed-upon terminology for  this  path;
pleadings in this litigation have referred to it as the  roadway,
driveway,  or Old Knik River Road.  We refer to it as the  access
road.

     5    Court documents variously spell Ms. Binghams name Raone
or  Roane.   We use Raone because that spelling was used  in  the
settlement  agreement entered into between the Walker and  Vaughn
plaintiffs and Ms. Bingham.

     6     Crystal  Brueggeman escaped with severe  but  nonfatal
injuries.

     7    The Walker plaintiffs included:  William Walker, Robert
Walkers  father,  as personal representative  of  the  Estate  of
Robert  Walker; Robert Walkers parents, William and Donna Walker;
Robert  Walkers  grandmother, Glenna Weeks;  and  Robert  Walkers
siblings, Rhonda, Katie, and Jonathan Walker.

          The  Vaughn plaintiffs included:  Donald Vaughn, Justin
Vaughns  father,  as personal representative  of  the  Estate  of
Justin  Vaughn  and  Justin  Vaughns parents,  Donald  and  Donna
Vaughn.

     8     The Walker and Vaughn plaintiffs also sued the Cancels
for  chasing Vaughn onto the access road, but the disposition  of
that claim is not relevant to this appeal.

     9     Though  Robert Walkers two other siblings  (Katie  and
Jonathan  Walker) and grandmother (Glenna Weeks) also  sued,  the
disposition of their claims is not pertinent to this appeal.

     10     The jury apportioned the remaining fault between  the
decedents parents, the Cancels, and the Binghams.

     11     The  jury assessed damages for the Estate  of  Robert
Walker  at  $10,000 for past economic loss to the time of  trial;
$10,000  for  past  non-economic  loss  to  the  time  of   trial
(including,  among  other things, loss  of  enjoyment  of  life);
$300,000  for future economic loss; and $10,000 for  future  non-
economic loss (loss of enjoyment of life).

          The  jury  assessed  damages  for  William  Walker   at
$125,000  for past non-economic loss and $75,000 for future  non-
economic loss.

          The  jury assessed damages for Donna Walker at $125,000
for  past  non-economic loss and $75,000 for future  non-economic
loss.

          The  jury assessed damages for Rhonda Walker at $60,000
for  past  non-economic loss and $40,000 for future  non-economic
loss.

          The  jury  assessed damages for the  Estate  of  Justin
Vaughn  at  $20,000 for past economic loss to the time of  trial;
$10,000  for  past  non-economic  loss  to  the  time  of   trial
(including,  among  other things, loss  of  enjoyment  of  life);
$400,000  for future economic loss; and $10,000 for  future  non-
economic loss (loss of enjoyment of life).

          The jury assessed damages for Donald Vaughn at $150,000
for  past  non-economic loss and $75,000 for future  non-economic
loss.

          The  jury assessed damages for Donna Vaughn at $125,000
for  past  non-economic loss and $75,000 for future  non-economic
loss.

     12     DelRois  was  thus responsible for sixty-two  percent
(twenty-seven  percent plus thirty-five percent)  of  this  loss.
The  principal  awarded  to  each  plaintiff  recovering  against
DelRois was thus arrived at by multiplying the applicable verdict
amount  by  .62.   The resulting awards were:  Estate  of  Robert
Walker    $204,600;  William  Walker   $124,000;   Donna   Walker
$124,000;  Rhonda  Walker   $62,000;  Estate  of  Justin   Vaughn
$272,800; Donald Vaughn  $139,500; Donna Vaughn  $124,000.

     13     43 U.S.C.  1610(a)(1)(A), (b)(1) (2006).  In 1974 the
Eklutna  Village  Corporation selected this land,  although  this
application was still pending at the time of litigation.

     14     The  State constructed Knik River Road in 1973.   BLM
denied the States request in 1976.

     15    Monzingo v. Alaska Air Group, Inc., 112 P.3d 655, 658-
59 (Alaska 2005).

     16    Stepanov v. Homer Elec. Assn, 814 P.2d 731, 734 (Alaska
1991).

     17     Leisnoi, Inc. v. Stratman, 956 P.2d 452, 454  (Alaska
1998).

     18    Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1000
n.1 (Alaska 2004).

     19     See Sprucewood Inv. Corp. v. Alaska Hous. Fin. Corp.,
33 P.3d 1156, 1161 (Alaska 2001).

     20    Norville, 84 P.3d at 1000 n.1.

     21     See Websters Third New International Dictionary  1836
(Philip Babcock Gove et al. eds., 14th ed. 1961) (defining public
to mean accessible to or shared by all members of the community);
see  also 39 Am. Jur. 2d Highways, Streets, and Bridges  3 (1999)
(Whether  a road is public or private is determined by extent  of
the right to use it, and not by the extent to which that right is
exercised or by quantity of travel over it.).

     22     See 17 Alaska Administrative Code (AAC) 20.040 (2004)
(prohibiting  the state from maintaining roads not  part  of  the
Alaska Highway System).

     23     See Norville, 84 P.3d at 1000 n.1 (stating that  when
adjudicating  summary judgments, courts must make all  reasonable
inferences in favor of the nonmovant).

     24     See  Leisnoi,  Inc. v. Stratman, 956  P.2d  452,  454
(Alaska  1998)  (holding  that  in  determining  the  intent   of
contracting   parties,  courts  may  consider  their   subsequent
conduct).

     25     This uncontested evidence also disposes of the Walker
and  Vaughn  plaintiffs  argument that the  State  possessed  the
access  road  and  thus  was  liable  on  a  theory  of  premises
liability.

     26     Beck v. State, Dept of Transp. & Pub. Facilities, 837
P.2d 105, 109 (Alaska 1992); see also Arctic Tug & Barge, Inc. v.
Raleigh,  Schwarz  & Powell, 956 P.2d 1199, 1203  (Alaska  1998);
Div.  of Corr., Dept of Health & Soc. Servs. v. Neakok, 721  P.2d
1121,  1127  &  n.7 (Alaska 1986).  We follow Beck in  this  case
because  ascertaining the existence of the tort duty  the  Walker
and  Vaughn plaintiffs assert involves balancing competing policy
prerogatives  in  a  setting that does  not  require  fact-driven
determinations.

     27    See D.S.W. ex rel. R.M.W. v. Fairbanks N. Star Borough
Sch. Dist., 628 P.2d 554, 555 (Alaska 1981) (quoting Peter W.  v.
San Francisco United Sch. Dist., 131 Cal. Rptr. 854, 859-60 (Cal.
App.  1997));  see also Parnell v. Peak Oilfield Serv.  Co.,  174
P.3d  757, 767 (Alaska 2007); Kallstrom v. United States, 43 P.3d
162, 167 (Alaska 2002).

     28     While  we recognize the general rule that  compliance
with  a  statute  or  regulation does not constitute  a  complete
defense  to  tort liability, this case involves an  exception  to
this general rule.  See 1 Dan B. Dobbs, The Law of Torts  224, at
573  (2001); see also Ramirez v. Plough, Inc., 863 P.2d 167,  172
(Cal.  1993)  (Where the evidence shows no unusual circumstances,
but  only  the ordinary situation contemplated by the statute  or
administrative rule, the the minimum standard prescribed  by  the
legislation or regulation may be accepted by the triers of  fact,
or  by  the  court  as  a matter of law, as  sufficient  for  the
occasion.   (quoting Restatement (Second) of Torts  288C  cmt.  a
(1965))).

     29    See Alaska Pac. Assurance Co. v. Collins, 794 P.2d 936,
946 (Alaska 1990).

     30    Cf. 1 Wayne R. LaFave, Substantive Criminal Law  5.6(d)
(2d  ed. 2003)  (stating that the criminal law generally does not
withhold  criminal  liability simply because  the  defendant  was
unaware his conduct constituted a crime).

     31    See Neakok, 721 P.2d at 1125.

     32     See  D.S.W.,  628  P.2d  at  555  (holding  that  the
foreseeability  of  harm is an important  factor  in  determining
whether to impose a tort duty).

     33    See id. (holding that when deciding whether to impose a
tort  duty, courts should consider the cost of such a burden  and
the likelihood imposing such a duty would prevent harm).

     34    See id. (holding that when deciding whether to impose a
tort duty, courts should consider the moral blame attached to the
defendants conduct).

     35    See id. (holding that when deciding whether to impose a
tort  duty, courts should consider the burdens to society of such
a duty).

     36     See Smith v. Stratton, 835 P.2d 1162, 1163-64  &  n.4
(Alaska 1992).

     37    Dressel v. Weeks, 779 P.2d 324, 329 (Alaska 1989).

     38    Krize v. Krize, 145 P.3d 481, 486 & n.19 (Alaska 2006).

     39    See id.

     40    Smith ex rel. Smith v. Marchant Enters., Inc., 791 P.2d
354, 356 (Alaska 1990).

     41     Matanuska Elec. Assn v. Chugach Elec. Assn,  99  P.3d
553,  561  n.30 (Alaska 2004) (citing Universal Motors,  Inc.  v.
Neary, 984 P.2d 515, 518 n.11 (Alaska 1999)).

     42    822 P.2d 914 (Alaska 1991).

     43     DelRois  does  not contend that  courts  cannot  hold
alcohol  vendors liable for damages resulting from their  illegal
provision of alcohol to minors.

     44    Loeb, 822 P.2d at 916-17.

     45    We have explained that

          a  prior decision may be abandoned because of
          changed  conditions if related principles  of
          law have so far developed as to have left the
          old  rule no more than a remnant of abandoned
          doctrine,  [or] facts have so  changed[,]  or
          come  to  be seen so differently, as to  have
          robbed    the   old   rule   of   significant
          application.
          
Pratt  &  Whitney  Canada, Inc. v. Sheehan, 852 P.2d  1173,  1176
(Alaska 1993) (quoting Planned Parenthood v. Casey, 505 U.S. 833,
855 (1992)).

     46     Petrolane Inc. v. Robles, 154 P.3d 1014, 1019 (Alaska
2007)   (recounting   the   history  of   Alaskas   tort   reform
legislation).

     47    Ch. 80,  1, SLA 1970; see also Kodiak Island Borough v.
Roe, 63 P.3d 1009, 1013 (Alaska 2003).

     48    540 P.2d 1037, 1049 (Alaska 1975).

     49    Arctic Structures, Inc. v. Wedmore, 605 P.2d 426, 429-
30, 432 (Alaska 1979).

     50    Ch. 139,  1-11, SLA 1986; see also Smith v. Ingersoll-
Rand Co., 14 P.3d 990, 994 (Alaska 2000).

     51    Former AS 09.17.060.

     52     Former  AS 09.17.080(d); see also Arctic  Structures,
Inc.,  605  P.2d  at  432  & n.17 (explaining  that  the  Uniform
Comparative   Fault  Act  did  not  abolish  joint  and   several
liability).

     53     Petrolane Inc. v. Robles, 154 P.3d 1014, 1019 (Alaska
2007);  Kodiak Island Borough v. Roe, 63 P.3d 1009, 1013  (Alaska
2003).   The  1986 statute also underwent some minor and  largely
cosmetic legislative changes in 1988.  Compare AS 09.17.080  with
Former AS 09.17.080.

     54    Petrolane Inc., 154 P.3d at 1019 n.12.

     55    AS 09.17.080(a)(2), (c), & (d).

     56    822 P.2d 914, 916 (Alaska 1991).

     57    Id.

     58    Id.

     59    Id.

     60    Id.

     61    Id.

     62    Id. at 917-18.

     63    Laws passed by the legislature generally do not affect
pre-enactment conduct.  Alaska Const. art. 2,  18; see also  Ogle
v.  Craig  Taylor  Equip. Co., 761 P.2d 722, 725  (Alaska  1988).
Though  Loeb  referenced  the  1986 codification  of  comparative
negligence,  Loeb,  822  P.2d  at  918-19,  and  the  1988  voter
initiative, id. at 920 n.15, that discussion was merely dicta.

     64    Loeb, 822 P.2d at 918.

     65    Id. at 919.

     66    Id. at 918-19 & nn.8 & 10.

     67    Id. at 920 n.15.

     68     See Arctic Structures, Inc. v. Wedmore, 605 P.2d 426,
431-34 (Alaska 1979).

     69     See  William L. Prosser, Contributory  Negligence  as
Defense  to  Violation of Statute, 32 Minn. L. Rev.  105,  118-23
(1948); see generally Restatement (Second) of Torts  483  cmt.  c
(1965)   (defining  exceptional  statutes  in  the   context   of
contributory negligence); Schooley v. Pinchs Deli Mkt., Inc., 912
P.2d  1044, 1048-49 (Wash. App. 1996) ([T]he protected  class  is
defined according to social policy.).

     70    Immunity can either be granted legally, as is done via
the exceptional statutes doctrine, or it can exist as a practical
matter, as is found in the case of judgment-proof defendants.

     71     Because  an  application  of  comparative  negligence
harmonizes  the  policy  concerns  expressed  by  the   competing
statutes  and avoids a conflict of statutes, we need not  address
the  rule  of  statutory  construction that  a  specific  statute
applies  over  a  general statute.  See Natl Bank  of  Alaska  v.
State, Dept of Revenue, 642 P.2d 811, 817-18 (Alaska 1982).

     72     We  discussed this policy in Loeb, 822 P.2d at 919  &
nn.11-12.

     73     Id. at 919; see also id. at 917 (quoting Guin v.  Ha,
591 P.2d 1281, 1284 n.6 (Alaska 1979)).

     74    Apart from liability in tort, the liquor licensee could
face sanctions against its license or even criminal charges.  See
AS 04.11.370; AS 04.11.535(b); AS 04.21.030.

     75     This  point  belies any argument that  a  comparative
negligence  rule  gives a vendor an incentive to  break  the  law
brazenly,  serving  a  patron until  the  patron  is  exceedingly
inebriated.  Though the negligence of such a patron  would  be  a
cause  of  any harmful behavior while intoxicated, the bar  would
also  be  negligent  for its purveyance of  large  quantities  of
alcohol.   Moreover, such a situation might support an  award  of
punitive  damages for reckless behavior on the part of  the  bar.
See  AS 09.17.020.  We note that the Walker and Vaughn plaintiffs
sought  punitive damages, alleging that DelRois was  reckless  in
providing alcohol.  The jury, however, declined to award punitive
damages.

     76     The jury considered those factors in this case.   The
jury  was  instructed to allocate fault among the parties  and  a
number  of  other persons, but, at the urging of the  Walker  and
Vaughn plaintiffs, the jury was not informed that fault allocated
to Walker and Vaughn would be charged to DelRois.  During closing
arguments  counsel for the Walker plaintiffs  told  the  jury  it
could  allocate fault to Walker and Vaughn, and counsel  for  the
Vaughn  plaintiffs told the jury that DelRois was  not  the  only
party  at  fault  and that Vaughn himself was at  fault  to  some
degree.  Evidence had been presented that Walker and Vaughn  were
seventeen  and  knew  it was illegal for  them  to  purchase  and
consume  alcohol;  Vaughn  nonetheless  purchased  alcohol   from
DelRois  and both of them consumed it and shared it with  another
minor; and then Vaughn, Walker, and the other minor all rode on a
single  four-wheeler, with Vaughn driving.  The jurys  allocation
of  fault,  weighted  heaviest  against  DelRois,  lower  against
Vaughn, and least against Walker, is consistent with the evidence
and the concessions by the Walker and Vaughn plaintiffs.  It also
answers any argument that in cases like this one juries will as a
matter  of  course  allocate virtually all of the  fault  to  the
intoxicated  minors.  It is true that had the Walker  and  Vaughn
plaintiffs known the jurys allocation of fault actually would  be
effective,  they may have made different tactical  decisions  and
closing  arguments.  But the trial court made  it  clear  to  the
Walker  and  Vaughn plaintiffs that they bore  the  risk  of  any
successful  challenge to the procedure they urged and  the  trial
court ultimately accepted.

     77    See, e.g., Steele v. Kerrigan, 689 A.2d 685, 701 (N.J.
1997).

     78    Loeb, 822 P.2d at 919 & n.10.

     79      See  id.  (citing  as  [c]ases  refusing  to   apply
comparative fault principles to dram shop actions Booth v.  Abbey
Rd.  Beef & Booze, Inc., 532 So. 2d 1288, 1290 (Fla. App.  1988);
Slager  v. HWA Corp., 435 N.W.2d 349, 351-54 (Iowa 1989); Chausse
v. Southland Corp., 400 So. 2d 1199, 1202 (La. App. 1981); Keenan
v.  Hydra-Mac,  Inc., 422 N.W.2d 741, 744-45 (Minn.  App.  1988),
revd on other grounds, 434 N.W.2d 463 (Minn. 1989)).

     80    435 N.W.2d 349 (Iowa 1989).

     81    Id. at 352.

     82     Martin v. Heddinger, 373 N.W.2d 486, 488 (Iowa 1985).
In Iowa the dram shop act provides the exclusive remedy against a
liquor licensee.  Slager, 435 N.W.2d at 352, 354.

     83    Iowa Code  123.92 (2007); Slager, 435 N.W.2d at 351-52;
Berge v. Harris, 170 N.W.2d 621, 625 (Iowa 1969).

     84    See Martin, 373 N.W.2d at 489 (Two reasons for the rule
expressed  in the cases are that one cannot profit from  his  own
wrong and a person who participates in the drinking activities is
not  an innocent person entitled to protection under the dramshop
act. (quoting Berge, 170 N.W.2d at 625)).  In no sense did Slager
overrule  Martin or Berge.  In Cox v. Rolling Acres  Golf  Course
Corp.,  532 N.W.2d 761 (Iowa 1995), the Iowa Supreme Court  cited
all three cases for the proposition that [c]omplicity on the part
of  the  injured party is an absolute bar to recovery under  [the
dram shop act].  Id. at 763-64.

     85    See Chausse v. Southland Corp., 400 So. 2d 1199, 1202-
03 (La. App. 1981).

     86    The Louisiana legislature enacted a rule of comparative
negligence  that  has been in effect since 1980.   See  Dumas  v.
State  ex rel. Dept of Culture, Recreation & Tourism, 828 So.  2d
530, 532-33 (La. 2002).  Though Chausse was decided in 1981,  the
court  only discussed contributory negligence, presumably because
the  cause  of action accrued before the effective  date  of  the
enactment of comparative negligence.

     87    Berg v. Zummo, 786 So. 2d 708, 718 (La. 2001).

     88     See  id. at 711-12, 716 (discussing an allocation  of
fault  in  a suit brought by a third party between an intoxicated
minor  and  the  bar that served the minor alcohol);  Colgate  v.
Mughal Bros., 836 So. 2d 1229, 1232 (La. App. 2003) (noting  that
the  trial  court  reduced the award of  damages  by  the  minors
comparative fault).

     89     See Loeb v. Rasmussen, 822 P.2d 914, 919 n.10 (Alaska
1991)  (citing Keenan v. Hydra-Mac, Inc., 422 N.W.2d  741  (Minn.
App. 1988), revd on other grounds, 434 N.W.2d 463 (Minn. 1989)).

     90     Keenan, 422 N.W.2d at 744-45 (citing Dusha v.  Va.  &
Rainy  Lake Co., 176 N.W. 482, 483 (Minn. 1920); Zerby v. Warren,
210 N.W.2d 58, 62 (Minn. 1973)).

     91    VanWagner v. Mattison, 533 N.W.2d 75, 79-80 (Minn. App.
1995).

     92    See id. at 76, 79-80.

     93     See  Publix Supermarkets, Inc. v. Austin, 658 So.  2d
1064, 1066-67 (Fla. App. 1995).

     94    355 F. Supp. 756 (D. Alaska 1973).

     95    See Loeb v. Rasmussen, 822 P.2d 914, 918 (Alaska 1991)
(citing  Vance,  355  F. Supp. 756); see also,  e.g.,  Morris  v.
Farley  Enters.,  Inc., 661 P.2d 167, 170 (Alaska  1983)  (citing
Vance, 355 F. Supp. at 760).

     96    Vance, 355 F. Supp. at 758-59.

     97    Id. at 759-60.

     98    Id.

     99    See id. at 760-61.

     100    See id.

     101    See Red Flame, Inc. v. Martinez, 996 P.2d 540, 543-44
(Utah  2000)  (overruling Reeves v. Gentile, 813 P.2d  111  (Utah
1991)).

     102     Reichert v. Atler, 875 P.2d 379, 381-82 (N.M. 1994);
see  also  Barth  v.  Coleman, 878 P.2d 319, 321-22  (N.M.  1994)
(reaffirming Reichert).

     103     See, e.g., Tobin v. Norwood Country Club, Inc.,  661
N.E.2d 627, 634 (Mass. 1996); Munford, Inc. v. Peterson, 368  So.
2d 213, 219 (Miss. 1979); Bissett v. DMI, Inc., 717 P.2d 545, 547
(Mont.  1986); Steele v. Kerrigan, 689 A.2d 685, 701 (N.J. 1997);
Busby  v. Quail Creek Golf & Country Club, 885 P.2d 1326, 1333-34
(Okla.  1994); Cook ex rel. Uithoven v. Spinnakers of  Rivergate,
Inc., 878 S.W.2d 934, 938-39 (Tenn. 1994); Matthews v. Konieczny,
527  A.2d 508, 512 (Pa. 1987) (citing Congini ex rel. Congini  v.
Portersville Valve Co., 470 A.2d 515, 518-19  (Pa. 1983)  (social
host  can  assert minors comparative fault)); Schooley v.  Pinchs
Deli  Mkt.,  Inc.,  951 P.2d 749, 756 (Wash. 1998);  Anderson  v.
Moulder, 394 S.E.2d 61, 70-71 (W. Va. 1990).  These cases include
actions  brought  by  the minor against the  vendor  and  actions
brought by a third party against the vendor.

          In some jurisdictions, the vendor, either by statute or
common law rule, is immune from liability resulting from injuries
related  to  the  sale  of  alcohol to  a  minor.   These  cases,
accordingly,  demonstrate  an even  greater  departure  from  our
holding in Loeb.  See Strang v. Cabrol, 691 P.2d 1013, 1016 (Cal.
1984) (recognizing that the legislature only allowed liability if
a vendor serves alcohol to an obviously intoxicated minor); Oakes
v. Megaw, 565 A.2d 914, 916-17 (Del. 1989); Winters v. Silver Fox
Bar,  797  P.2d 51, 53-54, 57 (Haw. 1990); Ling v. Jans  Liquors,
703  P.2d  731, 735-39 (Kan. 1985); Craig v. Larson,  439  N.W.2d
899, 904 (Mich. 1989); Pelzek v. Am. Legion, 463 N.W.2d 321, 323-
24  (Neb. 1990); Reuter v. Flobo Enters., Ltd., 503 N.Y.S.2d  67,
68  (N.Y.  App.  Div. 1986); Kirchner v. Shooters on  the  Water,
Inc., 856 N.E.2d 1026, 1029, 1038 (Ohio App. 2006); Meier ex rel.
Meier  v. Champs Sports Bar & Grill, Inc., 623 N.W.2d 94,  101-02
(Wis. 2001).

          Other  jurisdictions have not ruled in a case involving
a  vendors sale of alcohol to a minor but have addressed a social
hosts  liability  to a minor.  The following cases  hold  that  a
social host can assert the minors comparative negligence or  that
a  social host has no liability whatsoever.  Mowell v. Marks, 603
S.E.2d  702,  704  (Ga.  App.  2004) (holding  no  liability  and
construing Georgia Code Ann.  51-1-40 (West 2007), which  applies
equally  to  social hosts and vendors);  Nisbet  v.  Bucher,  949
S.W.2d  111,  116-17  (Mo.  App. 1997) (comparative  negligence);
Hickingbotham  v.  Bruke,  662  A.2d  297,  301-02  (N.H.   1995)
(comparative negligence under common law); Daniels v.  Carpenter,
62 P.3d 555, 561-62 (Wyo. 2003) (comparative negligence).

          Other  jurisdictions have not ruled in a case involving
a  minor  but  have  considered  the  consumers  fault  in  cases
involving  an adults intoxication.  See, e.g., Del E. Webb  Corp.
v.  Superior Court, 726 P.2d 580, 584-86 (Ariz. 1986);  Lyons  v.
Nasby,  770 P.2d 1250, 1259 (Colo. 1989); Idaho Dept of Labor  v.
Sunset  Marts,  Inc.,  91  P.3d 1111, 1115,  1117  (Idaho  2004);
Stewart v. Ryan, 520 N.W.2d 39, 46 (N.D. 1994); Fulmer v.  Timber
Inn  Rest.  &  Lounge, Inc., 9 P.3d 710, 717 (Or.  2000);  F.F.P.
Operating Partners v. Duenez, 237 S.W.3d 680, 689-90 (Tex. 2007).

     104    We also note that the current version of AS 09.65.210
precludes a person or his personal representative from recovering
damages  for his personal injury or death if the injury or  death
occurred  while  the person was operating a motor  vehicle  while
under  the influence of intoxicating liquor.  See AS 09.65.210(4)
and  (5).  Although this statute became effective after this case
accrued  and thus does not apply to this case, see ch.  26,   31,
SLA  1997, it too is inconsistent with continued treatment of  AS
04.21.020 as an exceptional statute.

     105    The settlement agreements with Raone and Carl defined
the  Walker  plaintiffs to include the Estate of  Robert  Walker,
William Walker, Donna Walker, Glenna Weeks, Rhonda Walker,  Katie
Walker, and Jonathan Walker.

     106    The settlement agreements with Raone and Carl defined
the  Vaughn  plaintiffs to include the Estate of  Justin  Vaughn,
Donald Vaughn, and Donna Vaughn.

     107    The Estate of Robert Walker received fifty percent of
the Walker plaintiffs settlements with the Binghams.

     108    Tommys Elbow Room, Inc. v. Kavorkian, 754 P.2d 243, 246
(Alaska 1988) (quoting Layne v. United States, 460 F.2d 409,  411
(9th Cir. 1972)) (internal quotation marks omitted).

     109    154 P.3d 1014 (Alaska 2007).

     110    Id. at 1019-20; see also Diggins v. Jackson, 164 P.3d
647, 648 (Alaska 2007) (following Petrolane).

     111    AS 09.17.080(d); Petrolane, 154 P.3d at 1019.

     112    Petrolane, 154 P.3d at 1020-21.

     113     Just as a defendant should not have to pay more than
its  share calculated under AS 09.17.080(d)  as we hold supra  on
page 38-39  Petrolane established that a defendant should not  be
permitted to pay less than its share.

     114    City of Kotzebue v. McLean, 702 P.2d 1309, 1316 (Alaska
1985).

     115    Hughes v. Bobich, 875 P.2d 749, 752 (Alaska 1994).

     116    Alaska R. Civ. P. 16(b) & 26.

     117    See McLean, 702 P.2d at 1316.

     118     Howard S. Lease Constr. Co. & Assocs. v. Holly,  725
P.2d  712,  720  (Alaska 1986) (quoting 6 Charles Alan  Wright  &
Arthur  R. Miller, Federal Practice & Procedure  1527, at  611-12
(1st ed. 1971)).

     119    As explained in the following subsection, DelRois only
objected  to  the  Walker and Vaughn plaintiffs  presentation  of
these witnesses on such short notice.  At trial, DelRois appeared
to  consent to the admissibility of their testimony to prove that
it provided alcohol to minors.

     120    See Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164,
1169 & n.7 (Alaska 1998).

     121    Id. at 1169-70.  DelRois cites State v. Guinn, 555 P.2d
530,  543 (Alaska 1976), and Hodges v. Mock, 501 P.2d 1355,  1359
(Alaska  1972),  for  the proposition that  we  have  upheld  the
exclusion of testimony even if there was no willful failure by  a
party  to comply with the trial courts discovery order.  However,
both of those cases came to us in a different procedural posture.
In both cases we determined that the trial court acted within its
discretion  by  limiting newly developed testimony.   Guinn,  555
P.2d at 543; Hodges, 501 P.2d at 1359.

     122    DelRois, in its opening statement, asserted that it did
not  serve alcohol to minors and that it strictly required  proof
of  identification.  Rose Sowinski testified that  I  didnt  sell
[alcohol]  to minors.  James McGill, the other co-owner,  made  a
similar  statement in testimony.  The testimony of  Sowinski  and
McGill  came  after that of Eric DuBois and Michael Poirier,  but
before that of Andrew Dousette.

     123    Turner v. Municipality of Anchorage, 171 P.3d 180, 184
(Alaska 2007).

     124    Laidlaw Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d
1093, 1097 (Alaska 2002).

     125    Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371,
379  (Alaska 2007) (quoting Martinez v. Cape Fox Corp., 113  P.3d
1226, 1229 (Alaska 2005)).

     126    We do not decide on the grounds that DelRois opened the
door  to this testimony because we are hesitant to find that  two
sentences  in DelRoiss opening statement suggesting that  DelRois
did  not  serve alcohol to minors were sufficient  to  allow  for
rebuttal testimony.  We note that the trial court did not endorse
an  opening the door theory.  The testimony of Rose Sowinski  and
James  McGill  emphasizing that DelRois did not serve  to  minors
came after the testimony of DuBois and Poirier.

     127    While the United States Supreme Court has limited the
scope   of   other   acts   evidence  that  is   constitutionally
permissible,  this case falls well within those boundaries.   See
State  Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422-24
(2003).

     128    See Geolar, Inc. v. Gilbert/Commonwealth Inc. of Mich.,
874 P.2d 937, 942 n.10 (Alaska 1994) (Homer Electric was entitled
to  a limiting instruction explaining [that the evidence was  not
hearsay  because it was not admitted to prove the  truth  of  the
matter   asserted].   However,  it  did  not  ask  for  such   an
instruction.).

     129    Alaska R. Evid. 103(d); Alaska R. Civ. P. 61; Crosby v.
Hummell, 63 P.3d 1022, 1028 n.23 (Alaska 2003).

     130     The  Walker and Vaughn plaintiffs argue that DelRois
waived  any  challenge  to the jury instructions  by  failing  to
object  to  them  at trial, but this argument is largely  without
merit.  We discuss this issue below when applicable.

     131     Cummins, Inc. v. Nelson, 115 P.3d 536,  541  (Alaska
2005).

     132    Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska
2002).

     133    Cummins, Inc., 115 P.3d at 541.

     134    Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d
20, 29 (Alaska 1998).

     135     The  exact  quantity of the jurys award  is  unclear
because  the  phrase loss of enjoyment of life was  used  in  two
places on the jurys form for each decedent.  One line on the form
only  discussed damages for post-trial loss of enjoyment of life.
Another  line  included loss of enjoyment of life in  a  list  of
damages under the caption of past non-economic loss.

     136    See Hanebuth v. Bell Helicopter Intl, 694 P.2d 143, 145-
46 (Alaska 1984) (observing that the cause of action for wrongful
death in Alaska was created by statute, not common law).

     137    AS 09.55.580(a); cf. Taylor v. Se.-Harrison W. Corp.,
694  P.2d  1160, 1161-62 (Alaska 1985) (noting that  the  Workers
Compensation  Act reflects a reasonable legislative determination
that   estates  of  decedents  with  dependents  require  greater
compensation than estates of decedents without dependents).

     138    See In re Estate of Pushruk, 562 P.2d 329, 331 (Alaska
1977) (defining dependent for purposes of AS 09.55.580 as one who
is  actually dependent upon the decedent for support at the  time
of his death, such as spouses or children).

     139     The  Walker and Vaughn plaintiffs cite Buoy  v.  ERA
Helicopters,  Inc., 771 P.2d 439 (Alaska 1989)  to  contest  this
conclusion.   But  Buoy  is inapplicable because  it  involved  a
personal injury suit, not a wrongful death suit.  See id. at 441,
447.

     140    We discuss DelRoiss challenge to this award infra  at
pages 59-61.

     141     AS 09.55.580(a); Gillispie v. Beta Constr. Co.,  842
P.2d  1272, 1273 (Alaska 1992) (When the decedent is not survived
by dependents, the statute limits recovery to pecuniary loss.).

     142     Cf.  Nickels v. Napolilli, 29 P.3d 242, 248  (Alaska
2001) ([T]he remedies offered by the workers compensation statute
supersede  any  common  law  remedies outside  of  the  statutory
scheme.).

     143    Beck v. State, Dept of Transp. & Pub. Facilities, 837
P.2d  105,  109  (Alaska  1992) (quoting  Tommys  Elbow  Room  v.
Kavorkian,  727  P.2d  1038,  1041 (Alaska  1986)).   To  recover
damages,  the harm suffered by the plaintiff as a result  of  the
shock  must be severe, but it does not necessarily need to result
in  physical illness or injury.  Chizmar v. Mackie, 896 P.2d 196,
201-04 (Alaska 1995).

     144    See Beck, 837 P.2d at 109-10 (holding that a plaintiff
who  saw  her injured daughter for the first time in the hospital
could assert an NIED claim); Tommys Elbow Room, 727 P.2d at 1040,
1043 (holding that a plaintiff who arrived at the scene of a  car
accident  in time to find his daughter injured and being  removed
from  the car could assert an NIED claim).  But see Mattingly  v.
Sheldon  Jackson  Coll.,  743  P.2d  356,  365-66  (Alaska  1987)
(affirming the rejection of an NIED claim where plaintiff was 150
miles  away when he learned of the accident injuring his son  and
had no sudden sensory observation of his injured son).

     145     See  Dale Joseph Gilsinger, Annotation, Relationship
Between  Victim  and  Plaintiff-Witness  as  Affecting  Right  to
Recover  Under  State Law for Negligent Infliction  of  Emotional
Distress  Due  to  Witnessing Injury to Another  Where  Bystander
Plaintiff Is Not Member of Victims Immediate Family, 98 A.L.R.5th
609,   621-22  (2002)  (The  relationship  to  the   victim   has
consistently been held adequate for bystander recovery where  the
plaintiff is a member of the victims immediate family,  that  is,
where  the  plaintiff is the victims spouse,  child,  parent,  or
sibling.).

     146    Beck, 837 P.2d at 110-11.

     147    The court did instruct the jury that it could award to
Rhonda damages for emotional distress . . . suffered . . .  as  a
result  of  witnessing  the scene of the accident.  But  it  also
instructed the jury that it could award to Rhonda damages due  to
the  loss of the relationship with her brother.  Neither the jury
instructions  nor  the special verdict forms  properly  explained
that  Rhonda could recover damages only under a theory  of  NIED,
not wrongful death.

          We consider DelRoiss challenge to the NIED instructions
below in subpart 6.

     148    AS 09.15.010.  As explained above, we have held that AS
09.15.010 provides an independent cause of action for parents  to
recover  a  wide variety of damages  including loss of consortium
stemming  from  the deaths of their children.  See  Gillispie  v.
Beta Constr. Co., 842 P.2d 1272, 1273-74 (Alaska 1992).

     149    See Crosby v. Hummell, 63 P.3d 1022, 1028 n.23 (Alaska
2003)  (declining  to  reach the issue of  whether  AS  09.15.010
allows  parents  to  recover  damages  for  periods  after  their
deceased children would have reached the age of majority).

     150    The statute only creates a cause of action for parents
for the injury or death of a child below the age of majority.  AS
09.15.010 (emphasis added).

     151    See Cummins, Inc. v. Nelson, 115 P.3d 536, 541 (Alaska
2005)  (holding  that where a party fails to  object  to  a  jury
instruction  at trial, this court will review the challenge  only
for plain error).

     152     Cf. Jackson v. Am. Equity Ins. Co., 90 P.3d 136, 141
(Alaska 2004).

     153    See Gillispie, 842 P.2d at 1273-74.

     154    See Cummins, Inc., 115 P.3d at 541.

     155    See City of Bethel v. Peters, 97 P.3d 822, 828 (Alaska
2004)  (holding that the superior court should have withheld  the
question of whether a plaintiff had suffered severe disfigurement
only  if  no  reasonable  juror could  find  that  the  plaintiff
suffered severe disfigurement).

     156     See  Pederson v. Barnes, 139 P.3d 552,  562  (Alaska
2006).

     157    Peters, 97 P.3d at 825.

     158    Id. at 828.

     159    See supra pages 49-51.  The award for past non-economic
loss  to  the  estates  included: pre death  pain  and  suffering
including  terror and fright, and emotional distress and  anguish
at impending death, post death loss of enjoyment of life, to time
of trial.

     160    As explained above, the NIED challenge is moot as  to
Rhonda because the jury instructions for Rhondas damages included
nonpecuniary harms that Rhonda could not recover under  a  theory
of NIED.

     161     Witnesses  of accidents may in certain circumstances
recover damages for resulting emotional harm through a claim  for
NIED.  Beck v. State, Dept of Transp. & Pub. Facilities, 837 P.2d
105, 109 (Alaska 1992).

     162    896 P.2d 196 (Alaska 1995).

     163    See id. at 204-05.

     164    See AS 09.17.040(b)-(c); Beaulieu v. Elliott, 434 P.2d
665, 671 (Alaska 1967) (holding trier of fact may compute loss of
future earnings without reduction to present value).

     165    DelRoiss appeal challenging the award of attorneys fees
on  timeliness grounds is mooted by our decision on  the  merits.
After  the various awards of damages are modified as required  by
this opinion and a partial new trial is held, a new judgment will
be  entered.   Based  on  this judgment the  plaintiffs  will  be
entitled to seek an award of fees under Civil Rule 82(b) and  (c)
within ten days after the date shown in the clerks certificate of
distribution of the new judgment.

1    822 P.2d 914 (Alaska 1991).

     2    Id. at 919-20.

     3    Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173,
1176 (Alaska 1993) (internal quotation marks omitted).

     4      Id.   (alteration  in  original)   (quoting   Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 855 (1992)).

     5    Slip Op. at 25-27.

     6     Loeb,  822 P.2d at 918-19.  The court refers to  Loebs
discussion   of   AS   09.17.060,  which   codified   comparative
negligence, as dicta (Slip Op. at 27 n.63) because the claims  at
issue  in  Loeb  arose  before  the enactment  of  AS  09.17.060.
However,  comparative  negligence  had  already  been  judicially
adopted  in Kaatz v. State, 540 P.2d 1037 (Alaska 1975), and  the
court  does  not  explain how the codification  of  this  already
adopted rule should invalidate the Loeb courts analysis.

     7    Loeb, 822 P.2d at 918.

     8    Id. at 922 (Moore, J., dissenting).

     9    Slip Op. at 35-36.

10   Loeb, 822 P.2d at 919.

     11   Id. at 920 n.15.

     12   Id.

     13   Slip Op. at 25.

     14   Loeb, 822 P.2d at 919.

     15   Id.

     16   Slip Op. at 33.

     17    See Booth v. Abbey Rd. Beef & Booze, Inc., 532 So.  2d
1288,  1290 (Fla. Dist. App. 1988).  In Florida, a liquor  vendor
is  exposed to liability based on an illegal sale to a minor only
if  the sale was made willfully, which distinguishes Florida  law
from Alaska law.  Fla. Stat. ann.  768.125 (West 2005).  However,
a  willful  sale  to a minor can be established by circumstantial
evidence  relating to the minors apparent age.   See  Gorman   v.
Albertsons,  Inc., 519 So. 2d 1119, 1120 (Fla. Dist. App.  1988).
Thus,  the  practical  difference  between  Floridas  willfulness
requirement and Alaskas immunity for liquor vendors who conduct a
good faith identification check may be small.

     18   Slager v. HWA Corp., 435 N.W.2d 349, 358 (Iowa 1989).

     19   Id. at 351-52.  Some other states also do not reduce  a
liquor  vendors liability by the amount of an intoxicated patrons
comparative negligence, providing some support for Loeb, but also
do not allow suits by intoxicated patrons themselves.  See, e.g.,
Aanenson v. Bastien, 438 N.W.2d 151, 152-54 (N.D. 1989).

     20    See  Minn. Stat. ann.  340A.801 (West 2004) (providing
that  dram  shop actions are subject to comparative  negligence);
VanWagner  v.  Mattison,  533 N.W.2d 75,  80  (Minn.  App.  1995)
(recognizing that the legislature has explicitly made  dram  shop
actions subject to comparative negligence).

     21   Slip Op. at 34.

     22   822 P.2d at 918 n.8.

     23   Slip Op. at 33.

     24   Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173,
1176 (Alaska 1993).

     25   Id.

     26   Slip Op. at 29.

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