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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
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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