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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. City of Hooper Bay v. Bunyan (9/11/2015) sp-7048
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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
CITY OF HOOPER BAY, )
) Supreme Court No. S-15533
Appellant, )
) Superior Court No. 4BE-12-00384 CI
v. )
) O P I N I O N
JUDY BUNYAN, individually and )
as Personal Representative of ) No. 7048 - September 11, 2015
Louis Bunyan, deceased, and on )
behalf of Sean Bunyan and Kayla )
Smith, minor children, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Bethel, Charles W. Ray, Jr., Judge.
Appearances: William H. Ingaldson, Ingaldson Fitzgerald,
P.C., and Barry J. Kell, Kell & Associates, P.C., Anchorage,
for Appellant. David Henderson, Law Offices of David
Henderson, and Jim Valcarce, Valcarce Law Office, LLC,
Bethel, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger,
Justices. [Maassen, Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
A 21-year-old intoxicated Hooper Bay resident committed suicide while he
was detained in a holding cell by the City of Hooper Bay. His mother filed a wrongful
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death action against the City, alleging that the City's negligence led to her son's death.
She sought damages in her individual capacity and on behalf of her son's estate and her
son's minor children. The case proceeded to a jury trial and the jury returned a
$1,078,233 judgment against the City. The City appeals, raising a number of issues, and
we affirm the superior court's rulings in many respects. But we vacate the jury's
damages award and remand for further proceedings on the issue of allocation of fault
between the City and the deceased under AS 09.17.080.
II. FACTS AND PROCEEDINGS
A. Facts
On July 28, 2011, 21-year-old Hooper Bay resident Louis Bunyan hanged
himself with the drawstring from his sweatpants while in the custody of the Hooper Bay
Police Department (HBPD). In the early morning hours of July 28, Louis had arrived
intoxicated at his mother Judy Bunyan's home where he lived with his siblings. Louis
became agitated and had to be subdued by his two brothers, Keith Bunyan and Larry
Bunyan. Louis's sister, Louise Bunyan, called the HBPD and reported that Louis was
intoxicated and fighting with family members. Village Police Officers Robert Tinker and
Walter Naneng responded and took Louis into custody inside of Judy's home. Officers
Tinker and Naneng removed Louis from the home and transported him on a four-wheeler
to the police station.
Officer Baylen Toots, the on-duty dispatcher and jailer at the police station,
later testified that Louis was highly intoxicated when he arrived at the police station.
Officer Toots testified that Louis's sister, Louise, had called dispatch at 4:07 a.m.; Louis
was placed in cell number 4 at 4:31 a.m.; Louis was found "hanging with a string tied . . .
around his neck, unresponsive" at 5:10 a.m.; and responders pronounced Louis dead at
5:30 a.m.
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Officers Tinker and Toots testified that upon taking Louis into custody they
engaged in routine safety checks. Officer Tinker testified that he checked Louis's HBPD
computer records but that he did not find any information about Louis. In fact four
HBPD records existed, each documenting separate incidents in which Louis had
threatened suicide. Photographs taken after Louis's death revealed horizontal scarring
on his forearms, providing additional evidence of past self-harm.
Officer Tinker testified that he and Officer Naneng searched Louis together.
Officer Naneng described a "pocket check" in which they "took the stuff out of [Louis's]
pockets[ and checked] if he had anything in his pockets to hurt himself." Both Officers
Tinker and Naneng testified that they checked Louis's pants for a drawstring. Officer
Naneng testified that he saw the drawstring but did not remove it because he "couldn't
do a strip-down search." Although Officers Tinker and Naneng did not remove Louis's
drawstring, they did remove Louis's laced basketball shoes during the search.
Officer Tinker recalled that Louis was calm and quiet during his intake, but
that Louis began crying as he was led to the cell. Once Louis was placed in the cell he
began yelling and hitting the walls. Officer Tinker denied a request from Louis for a pen
and paper while escorting Louis to the cell. Cell 4, where Louis was held, measured
approximately 8' x 4' and received only ambient light from a small window in the door
to the cell. Metal fencing covered the window on the door. Louis used this fencing to
secure the ligature around his neck during his suicide. Neither Louis's family members
nor Officers Naneng, Tinker, or Toots testified that Louis expressed any thoughts or
preoccupation with suicide on the night of his death.
Officer Nathan Joseph, an experienced Hooper Bay village police officer
and acting Hooper Bay police chief at the time of his deposition following Louis's death,
testified that an officer should check on a detainee every five minutes if that detainee was
"highly intoxicated." Officers Tinker and Naneng also testified that highly intoxicated
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detainees should by checked every five minutes. HBPD policy mandated that Officer
Toots should have checked in on Louis every five minutes and should have recorded the
time and Louis's condition at each check-up. Officer Toots failed to create this type of
record. Officer Tinker testified that Officer Toots did not check in on Louis every five
minutes, and Officer Toots testified that both he and Officer Tinker were browsing
Facebook while Louis was detained. Although the City asserted that Officer Toots
checked in on Louis three to five times between 4:30 a.m. and 5:08 a.m., the superior
court noted in its denial of the City's motion for summary judgment that it was plausible
that only two checks took place during the 38 minutes of detention before Toots
discovered Louis unresponsive in the cell at 5:08 a.m.
B. Proceedings
Louis is survived by his two children, Kayla and Sean, his mother Judy, and
his siblings Larry, Keith, Louise, and Davida. In August 2012 Judy filed a wrongful
death action against the City in the Bethel superior court. Her complaint alleged that
"[d]ue to the [City]'s negligence, Louis Bunyan died." Judy sought damages in her
individual capacity as Louis's dependent and on behalf of Louis's minor children for
"loss of contributions or support, pain and suffering, loss of assistance or services, and
loss of consortium" under Alaska's wrongful death statute, AS 09.55.580. She also
sought damages as the personal representative of Louis's estate for "[t]he harm to Louis
Bunyan prior to his death" under AS 09.55.570.
1. The City's motions for summary judgment
In August 2013 the City filed two motions for summary judgment. The first
motion asserted that the City was entitled to qualified immunity under
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1
AS 09.65.070(d)(2). The City argued that qualified immunity attached to the decision
by Officers Naneng and Tinker to place Louis under protective custody; to the pat down
search of Louis upon arrival at the police office; and to the periodic checks made by
Officer Toots while Louis was detained. The City also argued that it was entitled to
2
immunity under the immunity provisions of AS 47.37. Simultaneously, the City filed
a motion for summary judgment that alleged that Judy was not a dependent of Louis at
the time of his death and therefore was prohibited from recovering under AS 09.55.580
as a matter of law. Judy opposed both motions.
The superior court denied the City's motion for summary judgment
regarding Judy's status as a dependent of Louis because "numerous questions of fact
preclude[d] the grant of summary judgment." It noted that the City's factual position
1 AS 09.65.070(d)(2) provides that
[a]n action for damages may not be brought against a
municipality or any of its agents, officers, or employees if the
claim . . . is based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty
by a municipality or its agents, officers, or employees,
whether or not the discretion involved is abused.
2 AS 47.37.170(g) provides:
A person may not bring an action for damages based on the
decision under this section to take or not to take an
intoxicated person or a person incapacitated by alcohol or
drugs into protective custody, unless the action is for
damages caused by gross negligence or intentional
misconduct.
AS 47.37.235(b)(4) provides that "a peace officer or other person
responsible for detaining or transporting a person under AS 47.37.170-47.37.270" may
not be held civilly or criminally liable "for detaining or failing to detain a person under
AS 47.37.170-47.37.270 . . . if the [peace officer or other person has] performed [his
duty] in good faith and without gross negligence."
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----------------------- Page 6-----------------------
was at odds with the affidavit of Judy Bunyan and economic loss reports submitted by
Judy's economist, Francis Gallela. The superior court concluded that "[s]ince reasonable
jurors could conclude from the evidence that there is a factual basis for Judy's claim for
loss of support, the motion must be denied."
Addressing the City's qualified immunity motion for summary judgment,
the superior court first determined that the City owed its detainees a duty of reasonable
care to protect them from reasonably foreseeable harm, including self-inflicted harm.
With regard to the decision to arrest Louis, the superior court found that "[t]he act of
taking Louis into custody was a discretionary action undertaken by HBPD officers." The
superior court determined that the decision to arrest Louis was objectively reasonable
under the circumstances and that "as to the decision to take Louis into custody, whether
protective or otherwise, the City is entitled to discretionary immunity."
The superior court then rejected the City's assertion that because there was
no requirement that the officers search Louis, the search itself was a discretionary act.
The superior court noted that the decision to search Louis might be discretionary but that
once that decision to search had been made, the manner of executing the search was not
a discretionary act. Similarly, the court concluded that because the City conceded that
a protocol existed for checking on detainees, "the operational performance of that check
is not discretionary and must be performed non-negligently." The superior court also
concluded that the records check conducted by Officer Tinker was not subject to
discretionary action immunity because while the decision to check records may have
been discretionary the actual manner of performance of the check was not.
Turning to the City's argument that it was entitled to immunity pursuant to
AS 47.37.170 and AS 47.37.235, the superior court concluded that Title 47 applied only
to the detention of intoxicated persons from public places. Because Louis was removed
from Judy's home, the superior court concluded that the statutes were inapplicable. Thus
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----------------------- Page 7-----------------------
the superior court granted the motion for summary judgment on the issue of qualified
immunity for taking Louis into custody and denied all of the City's other immunity
arguments.
2. The City's motion in limine
Prior to trial, the City filed a motion in limine to exclude testimony it
anticipated would be presented by Gallela, the economist Judy had hired, regarding the
economic loss attendant to Louis's death. The City argued that Gallela's economic loss
report ignored contradictory testimony from the family's depositions and that his report
was too speculative to survive application of the Daubert factors3 for assessing the
credibility of scientific testimony. The City also argued that Gallela's testimony was not
sufficiently reliable to be allowed under Alaska Rule of Evidence 703.
Judy opposed the City's motion, arguing that under Alaska law a Daubert
hearing was not a prerequisite for the admission of economic loss testimony and that
Gallela was a highly qualified economic expert. The superior court denied the City's
motion and allowed Gallela to testify, concluding that "[t]he City's objections . . . go to
the weight of the testimony and opinions, not their admissibility."
3. Jury trial
The case proceeded to trial in January 2014. The City filed three motions
for directed verdict at the close of Judy's case-in-chief, arguing (1) that the evidence did
not support a finding that Louis's suicide was reasonably foreseeable and that the City
therefore had no duty to prevent it, (2) that there was insufficient evidence to support an
award of economic damages, and (3) that there was insufficient evidence to support a
finding that Judy was a statutory beneficiary of Louis under AS 09.55.580. The superior
3 See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-94 (1993);
State v. Coon, 974 P.2d 386, 390 (Alaska 1999).
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----------------------- Page 8-----------------------
court denied each of these motions. The City also proposed jury instructions and a
special verdict form that the superior court rejected.
The jury found that the City was negligent and awarded $960,000 in
damages owed to Judy and Louis's two minor children. The jury did not award any
damages for Louis's pre-death pain and suffering. The superior court entered a
$1,078,233 judgment against the City, which included attorney's fees, costs, and interest.
The City appeals.
III. STANDARDS OF REVIEW
4
We review de novo
"We review grants of summary judgment de novo."
the denial of a directed verdict to "determine whether the evidence, when viewed in the
light most favorable to the non-moving party, is such that reasonable persons could not
5
differ in their judgment." When reviewing the disposition of a motion for a directed
6
verdict, "we will not 'weigh conflicting evidence or judge the credibility of witnesses.' "
"We interpret statutes 'according to reason, practicality, and common sense,
taking into account the plain meaning and purpose of the law as well as the intent of the
7
drafters.' " "We decide questions of statutory interpretation on a sliding scale: '[T]he
4 Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 516 (Alaska 2014).
5
Cummins, Inc. v. Nelson, 115 P.3d 536, 541 (Alaska 2005) (quoting K & K
Recycling, Inc. v. Alaska Gold Co. , 80 P.3d 702, 722 (Alaska 2003)) (internal quotation
marks omitted).
6
Dura Corp. v. Harned , 703 P.2d 396, 408 (Alaska 1985) (quoting City of
Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 220 (Alaska 1978)).
7
Marathon Oil Co. v. State, Dep't of Natural Res. , 254 P.3d 1078, 1082
(Alaska 2011) (quoting Native Village of Elim v. State , 990 P.2d 1, 5 (Alaska 1999)).
-8- 7048
----------------------- Page 9-----------------------
plainer the language of the statute, the more convincing contrary legislative history must
be.' "8
"The existence and extent of a duty of care are questions of law which we
9
review de novo." "Jury instructions involve questions of law to which we apply our
10
independent judgment." "When reviewing a trial court's denial of a proposed
instruction, our inquiry focuses upon whether the instructions given, when read as a
11
whole, adequately inform the jury of the relevant law." "An error in jury instructions
12
"In evaluating whether there has
is grounds for reversal only if it caused prejudice."
been prejudicial error with regard to jury instructions, we put ourselves in the position
of the jurors and 'determine whether the error probably affected their judgment.' "13
"We generally review a trial court's decision to admit expert testimony for
14 "Where the admissibility of expert testimony turns on a question
abuse of discretion."
of law, such as the 'correct scope or interpretation of a rule of evidence,' we apply our
8 Id. (alteration in original) (quoting Alaskans for Efficient Gov't, Inc. v.
Knowles , 91 P.3d 273, 275 (Alaska 2004)).
9 State v. Sandsness, 72 P.3d 299, 301 (Alaska 2003) (citing Beck v. State,
Dep't of Transp. & Pub. Facilities , 837 P.2d 105, 109 (Alaska 1992)).
10 Thompson v. Cooper, 290 P.3d 393, 398 (Alaska 2012) (citing L.D.G., Inc.
v. Brown , 211 P.3d 1110, 1118 (Alaska 2009)).
11 Id. (quoting Kavorkian v. Tommy's Elbow Room, Inc. , 694 P.2d 160, 166
(Alaska 1985)) (internal quotation marks omitted).
12 Id. at 398-99 (alteration omitted) (quoting State, Dep't of Corr. v. Johnson,
2 P.3d 56, 59 (Alaska 2000)) (internal quotation marks omitted).
13 Id. at 399 (quoting Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska
2002)).
14 Id. at 398.
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----------------------- Page 10-----------------------
'independent judgment, adopting the rule most persuasive in light of reason, precedent
and policy.' "15
IV. DISCUSSION
The City makes several arguments on appeal. It argues that it cannot be
held liable in tort because it was under no duty to prevent Louis's suicide. The City
argues that if it did owe a duty of care to Louis while he was held in protective custody,
then it was entitled to summary judgment on the grounds that its actions were protected
by the doctrine of qualified immunity under either AS 09.65.070(d)(2) or AS 47.37. The
City argues that the superior court erred in denying its motions for directed verdict
because the evidence presented in Judy's case-in-chief was insufficient for reasonable
persons to conclude that Louis's death was foreseeable and insufficient for a jury to
conclude that Judy was financially dependent on Louis.
Alternatively, the City argues that we must remand the case for a new trial
because the superior court did not properly include an instruction regarding
foreseeability and because the superior court instructed the jury that the City owed Louis
a heightened duty of care. The City argues instead that its liability was limited to grossly
negligent acts and intentional misconduct. Regarding damages, the City argues that the
superior court erred by allowing the introduction of Gallela's economic loss testimony
and by failing to instruct the jury to allocate fault between Louis and the City as required
by AS 09.17.080. In particular, it challenges jury instruction 20 on the ground that it
prevented the jury from allocating damages between Louis and the City as required by
AS 09.17.080.
15 Id. at 349-50 (quoting City of Bethel v. Peters, 97 P.3d 822, 825 (Alaska
2004)).
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A. The Superior Court Did Not Err In Denying The City's Motion For
Summary Judgment On The Ground That It Was Entitled To
Qualified Immunity Under AS 09.65.070(d)(2).
"In negligence cases, we treat duty as the threshold issue because
'conceptually, the question of the applicability of a statutory immunity does not even
arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff
16
and thus would be liable in the absence of such immunity.' " Here, the City owed
17
Louis a "duty of reasonable care to protect a prisoner from unreasonable risks of harm."
18
This duty "encompasses reasonably foreseeable suicide attempts." Contrary to the
City's argument on appeal, "the intentionality of a prisoner's suicide should not
19
altogether excuse that duty." Last year in Achman v. State we held that "[j]ailers owe
their prisoners a duty 'to exercise reasonable care for the protection of [the prisoners']
lives and health,' which 'encompasses a duty to prevent self-inflicted harm that is
20 We went on to explain that a "jailer must exercise a higher
reasonably foreseeable.' "
degree of care when the jailer knows or reasonably should have foreseen that the
21 Because the City owed
prisoner was incapacitated, suicidal, or otherwise in danger."
16 Estate of Logusak ex rel. Logusak v. City of Togiak , 185 P.3d 103, 106
(Alaska 2008) (alteration omitted) (quoting Div. of Corr., Dep't of Health & Soc. Servs.
v. Neakok , 721 P.2d 1121, 1125 (Alaska 1986)).
17 Joseph v. State , 26 P.3d 459, 474 (Alaska 2001).
18 Id.
19 Id.
20 323 P.3d 1123, 1127 (Alaska 2014) (alteration in original) (quoting Joseph ,
26 P.3d at 466-67).
21 Id. (quoting State, Dep't of Corr. v. Johnson, 2 P.3d 56, 60 (Alaska 2000))
(internal quotation marks omitted).
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22
Louis a "duty of reasonable care to protect a prisoner from unreasonable risks of harm,"
we reach the City's argument that it was entitled to qualified immunity.
Alaska Statute 09.65.070(d)(2) "immunizes a municipality from exercising
or failing to exercise a discretionary function."23 We have held that "decisions involving
basic planning or policy are entitled to immunity, but 'those that are merely operational
24
in the sense that they implement plans or carry out policy' are not." We have also held
that "[a]lthough the dividing line between planning and operational decisions may often
be hard to discern, . . . 'under the planning [versus] operational test, liability is the rule,
immunity is the exception.' "25
Here the initial decision to take Louis into custody was discretionary and
subject to qualified immunity. But once Louis was in custody, the City was not
immunized from liability for the implementation of the operational protocols in place for
the detention of intoxicated individuals by its village police officers. Officer Tinker
decided to search the police department records for records involving Louis Bunyan.
Qualified immunity does not protect the City from the consequences of his failure to
adequately implement that search. Officer Joseph testified that it was HBPD policy to
check on highly intoxicated detainees every five minutes. That Officer Toots failed to
do so was not a discretionary decision entitled to qualified immunity but rather a failure
22 Joseph , 26 P.3d at 474.
23 Cutler v. Kodiak Island Borough, 290 P.3d 415, 420 (Alaska 2012).
24 Id. (quoting Guerrero ex rel. Guerrero v. A laska Hous. Fin. Corp., 123
P.3d 966, 976 (Alaska 2005)).
25 Guerrero, 123 P.3d at 977 (quoting State, Dep't of Transp. & Pub.
Facilities v. Sanders, 944 P.2d 453, 457 (Alaska 1997)) (footnote and internal quotation
marks omitted).
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----------------------- Page 13-----------------------
to carry out the policy. We affirm the superior court's denial of the City's motion for
summary judgment on the basis of AS 09.65.070(d)(2).
B. The Superior Court Did Not Err In Denying The City's Motions For
Directed Verdict.
The City appeals the denial of two of its motions for directed verdict,
arguing that based on the evidence presented reasonable persons could not conclude that
Louis's death was foreseeable or that Judy was financially dependent on Louis and
therefore entitled to seek damages under AS 09.55.580(a). When reviewing motions for
directed verdict we "determine whether the evidence, viewed in the light most favorable
to the non-moving party, is such that reasonable persons could not differ in their
26 and will not "weigh conflicting evidence or judge the credibility of
judgment"
witnesses."27
But Judy presented substantial evidence from which reasonable persons
could conclude that Louis's suicide was reasonably foreseeable. She introduced four
separate police records containing information that Louis had a history of suicidal
ideation. And she presented testimony that these records were available on the
computers at the police headquarters. A post-mortem photograph revealed visible
horizontal scarring on Louis's forearms, indicating past self-harm. Louis's brother
testified that Louis was extremely upset about being removed from Judy's home and
placed into protective custody, and Kurtelina Bell, the woman detained in the cell next
to Louis's, testified that Louis was crying and pounding on the walls of his cell. Finally,
26 L.D.G., Inc. v. Brown , 211 P.3d 1110, 1117-18 (Alaska 2009) (citing
Holiday Inns of Am., Inc. v. Peck , 520 P.2d 87, 92 (Alaska 1974)).
27 Dura Corp. v. Harned , 703 P.2d 396, 408 (Alaska 1985) (quoting City of
Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 220 (Alaska 1978)) (internal
quotation marks omitted).
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----------------------- Page 14-----------------------
expert testimony indicated that Alaska Natives commit suicide at a rate five times the
national average and that suicide is particularly problematic in rural coastal communities.
Because a reasonable person could conclude from this body of evidence that Louis's
suicide was reasonably foreseeable, we affirm the superior court's denial of the City's
motion for a directed verdict on the question of foreseeability.
Judy similarly introduced sufficient evidence for a reasonable person to
conclude that she was Louis's dependent and a qualifying statutory beneficiary under
28
AS 09.55.580(a). In order to recover, a purported beneficiary must make a showing
"of actual dependency for significant contributions of support over a sufficient period of
29
Louis's
time to justify the assumption that such contributions would have continued."
brother Larry testified that Judy depended the most on Louis while he was alive and
testified that Louis was the main subsistence provider for the family, providing
waterfowl, seal, whale, and moose meat. Larry also testified that Louis did the cooking
for the family as well as household chores and repairs. Judy testified that she has had
less subsistence food since Louis's death. While the City points out that there was also
some testimony that Judy provided financial support for Louis, we do not "weigh
conflicting evidence or judge the credibility of witnesses" in evaluating denials of
30
motions for directed verdict on appeal. Because a reasonable person could conclude
that Judy was Louis's dependent, we affirm the superior court's denial of the City's
motion for a directed verdict.
28 AS 09.55.580 is Alaska's wrongful death action statute. Subsection (a)
provides that "[t]he amount recovered, if any, shall be exclusively for the benefit of the
decedent's spouse and children . . . or other dependents."
29
Greer Tank & Welding, Inc. v. Boettger, 609 P.2d 548, 551 (Alaska 1980).
30
Dura Corp. , 703 P.2d at 408 (quoting Whittier Fuel & Marine Corp., 577
P.2d at 220) (internal quotation marks omitted).
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C. The Superior Court Did Not Err By Admitting The Economic Loss
Testimony And Report Offered By Judy's Expert Witness, Francis
Gallela.
"Alaska Rule of Evidence 702(a) controls the admissibility of expert
31 Rule 702(a) provides: "If scientific, technical, or other specialized
testimony."
knowledge will assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise." "We confirmed
long ago that 'the standard for admission of expert testimony in Alaska is whether the
32 And "[a]s a general rule, the trial
testimony would appreciably assist the trier of fact.' "
judge retains wide latitude in deciding whether to admit the testimony of an expert
witness."33
On appeal the City argues that the superior court erred in admitting
Gallela's testimony because it was too speculative and because it did not satisfy the
requirements for the admission of scientific or technical evidence. Under Alaska law,
"[e]xpert testimony may be based on either: (1) technical or scientific research and
34 35
testing; or (2) practical experience in the relevant field." In State v. Coon we adopted
the non-exclusive factors set out by the United States Supreme Court in Daubert v.
31 Barton v. N. Slope Borough Sch. Dist. , 268 P.3d 346, 350 (Alaska 2012)
(citing John's Heating Serv. v. Lamb , 46 P.3d 1024, 1039 (Alaska 2002)).
32 Id. (quoting INA Life Ins. Co. v. Brundin , 533 P.2d 236, 243 (Alaska
1975)).
33 Id. (quoting Barrett v. Era Aviation, Inc., 996 P.2d 101, 103 (Alaska 2000))
(internal quotation marks omitted).
34 Id. (citing Marsingill v. O'Malley , 128 P.3d 151, 159 (Alaska 2006)).
35 974 P.2d 386 (Alaska 1999).
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36
Merrell Dow Pharmaceutical, Inc. to determine whether scientific testimony is
37 38
sufficiently reliable. But we held in Marron v. Stromstad that testimony based on
practical experience in a relevant field does not have to meet the heightened requirements
39
taking
outlined by the United States Supreme Court in Kumho Tire Co. v. Carmichael ,
note of Alaska's "liberal standard favoring the admissibility of expert testimony . . . to
increase the information available to the fact-finder."40
Although the City argues that economic loss opinions are generally
technical and subject to analysis under the Daubert factors, we have never required
analysis under Daubert as a prerequisite to the admission of expert economic loss
41
testimony. Instead we have held that when "expert testimony is plainly derived from
36 509 U.S. 379 (1993).
37 See Coon, 974 P.2d at 395 ("The factors identified in Daubert provide a
useful approach: (1) whether the proffered scientific theory or technique can be (and has
been) empirically tested (i.e., whether the scientific method is falsifiable and refutable);
(2) whether the theory or technique has been subject to peer review and publication; (3)
whether the known or potential error rate of the theory or technique is acceptable, and
whether the existence and maintenance of standards controls the technique's operation;
and (4) whether the theory or technique has attained general acceptance." (citing
Daubert , 509 U.S. at 593-94)).
38 123 P.3d 992 (Alaska 2005).
39 526 U.S. 137 (1999).
40 Marron , 123 P.3d at 1005.
41 See, e.g., State Dep't of Transp. & Pub. Facilities v. Miller, 145 P.3d 521,
524-25 (Alaska 2006); Reeves v . Alyeska Pipeline Serv. Co., 56 P.3d 660, 669 (Alaska
2002).
-16- 7048
----------------------- Page 17-----------------------
experience - not from the scientific method - and is not dependent on sophisticated
42
scientific theory, Daubert does not apply."
Gallela's testimony here was not based on complex scientific or technical
theories, but rather on his experience as an economist working in rural Alaska. In his
testimony he presented a variety of hypothetical scenarios in which Louis pursued
different careers. Gallela multiplied the average wages by an average career length and
discounted the result to present value after accounting for consumption and taxes.
Gallela readily noted the difficulty in estimating lifetime economic losses, admitting that
"[he didn't] have a crystal ball . . . [and] couldn't tell you exactly what [Louis] would
have done."
While the City argues that a lack of specificity warrants the exclusion of
Gallela's testimony, we have held that " '[v]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof' - in short, the basic
pillars of the adversary system - 'are the traditional and appropriate means of attacking
43
shaky but admissible evidence.' " The City failed to call an expert witness to rebut
Gallela's testimony. It was up to the jury to determine how much weight to give
Gallela's testimony and the jury's ultimate damage award of $960,000 - less than half
of Gallela's $2,200,000 economic loss estimate - signals that the jury carefully
considered the City's cross-examination of Gallela's testimony. Because a Daubert
hearing was not required and because Gallela's testimony "appreciably assist[ed] the trier
42 Marron , 123 P.3d at 1007.
43 Id. (alteration in original) (quoting Daubert v. Merrell Dow Pharm., Inc. ,
509 U.S. 579, 596 (1993)); see also Maines v. Kenworth Alaska, Inc. , 155 P.3d 318, 326
(Alaska 2007) ("[W]eaknesses in data used by an expert in formulating his opinion are
properly weighed by the jury after being brought out by cross-examination." (quoting
N. Lights Motel, Inc. v. Sweaney , 561 P.2d 1176, 1189 (Alaska 1977))).
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44
of fact," we conclude that the superior court did not err in admitting Gallela's economic
loss testimony.
C. The Superior Court's Jury Instructions
1. The superior court did not err by giving an ordinary negligence
instruction rather than requiring gross negligence to establish
liability.
"We interpret statutes 'according to reason, practicality, and common sense,
taking into account the plain meaning and purpose of the law as well as the intent of the
drafters.' "45
The City argues that Louis was taken into protective custody under
AS 47.37.170(b), which provides that "[a] person who appears to be incapacitated by
alcohol or drugs in a public place shall be taken into protective custody by a peace
officer." Alaska Statute 47.37.170(g) establishes that "[a] person may not bring an
action for damages based on the decision under this section to take or not to take an
intoxicated person or a person incapacitated by alcohol or drugs into protective custody,
unless the action is for damages caused by gross negligence or intentional misconduct."46
But here the action for damages was not based on the decision to take Louis into custody.
Rather, the action was based on the City's alleged violation of its duty of care to protect
47
detainees from harm, including self-harm. Thus AS 47.37.170(g) does not immunize
the City from liability or create a gross negligence standard of care for the actions taken
44 Barton v. N. Slope Borough Sch. Dist. , 268 P.3d 346, 350 (Alaska 2012)
(quoting INA Life Ins. Co. v. Brundin , 533 P.2d 236, 243 (Alaska 1975)) (internal
quotation marks omitted).
45
Marathon Oil Co. v. State, Dep't of Natural Res. , 254 P.3d 1078, 1082
(Alaska 2011) (quoting Native Village of Elim v. State , 990 P.2d 1, 5 (Alaska 1999)).
46 AS 47.37.170(g) (emphasis added).
47
See Joseph v. State , 26 P.3d 459, 474 (Alaska 2001).
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by the City while Louis was detained.
The City argues that even if AS 47.37.170(g) only applies to the decision
whether to take an intoxicated person into protective custody, another provision,
AS 47.37.235(b)(4), applies more broadly. That law provides that "a peace officer or
other person responsible for detaining or transporting a person under
AS 47.37.170-47.37.270"
may not be held civilly or criminally liable for detaining or
failing to detain a person under AS 47.37.170-47.37.270 or
for releasing a person under AS 47.37.170-47.37.270 at or
before the end of the period for which the person was
admitted or committed for protective custody or treatment if
the persons have performed their duties in good faith and
[48]
without gross negligence.
The City argues that this gross negligence standard, and not the ordinary negligence
standard announced in some of our cases49 and used by the superior court in this case,50
applies to its liability for its officers' conduct while Louis was in custody.
48 AS 47.37.235(b)(4).
49 See Joseph, 26 P.3d at 470 (referencing "a jailer's duty of reasonable care"
rather than the gross negligence standard); Achman v. State , 323 P.3d 1123, 1127
(Alaska 2014) ("Jailers owe their prisoners a duty 'to exercise reasonable care for the
protection of [the prisoners'] lives and health,' which 'encompasses a duty to prevent
self-inflicted harm that is reasonably foreseeable.' " (quoting Joseph , 26 P.3d at 466,
467)).
50
Jury instruction 15 predicated the City's liability on the jury finding that the
City was negligent, and instruction 16 defined negligence as "[doing] something that a
reasonably careful person would not do in the same situation or [failing] to do something
that a reasonably careful person would do in the same situation." In contrast, the Alaska
Civil Pattern Jury Instruction 3.14 defines gross negligence as "an extreme departure
from [the reasonably careful person] standard," and "more than ordinary inadvertence
or inattention, but less than conscious indifference to consequences."
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We do not agree with the City's interpretation of AS 47.37.235(b)(4). The
plain text of the statute only applies the gross negligence standard to "liab[ility] for
detaining or failing to detain a person . . . or for releasing a person." The statute's text
does not purport to apply the gross negligence standard to actions taken while the person
is detained. In this, it mirrors the scope of the immunity provided by AS 47.37.170(g).
And like subsection .170(g), it would not apply to the actions taken by the City while
Louis was detained.
Legislative history also precludes the City's suggested broad application
of AS 47.37.235(b)(4). This immunity section was added to Chapter 37 in 1996 by a law
that focused on the procedures by which a person addicted to drugs or alcohol could be
51
involuntarily committed for treatment. Specifically, the law broadened the ability of
guardians and public health officials to seek 30-day and 180-day commitments of
52
alcoholics and drug abusers. It did not change the authority of peace officers to take
an incapacitated person in a public place into protective custody except to expand that
authority to reach incapacity caused by drugs as well as by alcohol.53 And the legislative
history does not suggest that the limited liability provision in section .235 was intended
to immunize activities that were previously authorized but not immunized; instead, it was
included to "address[] [the] potential for an unintentional increase in liability" from
54
passage of the 1996 law. Thus, both the plain text of the statute and its legislative
history demonstrate that the gross negligence standard in subsection .235(b)(4), like that
51 See generally ch. 66, SLA 1996.
52 See id. §§ 8, 11, 12.
53 See id. §§ 1-5.
54 Minutes, Sen. Fin. Comm. Hearing on H.B. 493, 19th Leg., 2nd Sess.
(Apr. 29, 1996) (statement of Senator Steve Rieger).
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in subsection .170(g), is relevant only to the decision whether to take an individual into
custody. Because Judy's claim of negligence concerned the City's actions once Louis
was in custody rather than the decision to take him into custody in the first place, the jury
instruction stated the appropriate duty of care owed by the City.
2. The superior court's jury instructions properly included the
reasonable foreseeability element required under Joseph v. State
and did not require a "heightened" duty of care because Louis
was intoxicated.
Our decision in Joseph v. State established that "a jailer's duty of
reasonable care to protect a prisoner from unreasonable risks of harm encompasses
55
In Achman v. State we recognized that a
reasonably foreseeable suicide attempts."
"jailer must exercise a higher degree of care when the jailer knows or reasonably should
have foreseen that the prisoner was incapacitated, suicidal, or otherwise in danger."56
Jury instruction 17 provided:
If a person, when taken into protective custody, is
intoxicated, and the police and/or jailers were aware of it or
should have been aware of it, they owe him a higher degree
of care than they owe to an ordinary sane, sober person in
control of his mental and physical faculties. In such
instances, they owe such person a duty to reasonably protect
him from reasonably foreseeable harm, including harm
caused by his own act to himself.
The language of instruction 17 corresponds directly to the legal rules set out in Achman
and Joseph . Although the instruction does not explicitly direct the jury that it must find
Louis's suicide reasonably foreseeable in order to hold the City liable, as the City argues
was required, it nevertheless states the appropriate legal standard by limiting the City's
55 26 P.3d 459, 474 (Alaska 2001).
56 323 P.3d 1123, 1127 (Alaska 2014) (quoting State, Dep't of Corr. v.
Johnson , 2 P.3d 56, 60 (Alaska 2000)) (internal quotation marks omitted).
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duty to "reasonably protect[ing] [Louis] from reasonably foreseeable harm."
Instruction 17 told the jury that if it found that the harm Louis suffered was not
reasonably foreseeable, the City had no duty to protect him from that harm. Because the
57
no prejudice resulted
instruction "adequately inform[ed] the jury of the relevant law,"
from not requiring a specific finding that Louis's suicide was reasonably foreseeable.
We affirm the superior court's jury instruction.
3. Jury instruction 20 was erroneous because it effectively
precluded the jury from allocating fault between Louis and the
City as AS 09.17.080 requires.
At trial the City opposed the superior court's jury instruction number 20
regarding incapacity and allocation of fault. That instruction provided:
Jury Instruction 20
You must decide whether it is more likely true than not true
that at the time Louis Bunyan died, City of Hooper Bay
employees knew or reasonably should have known that:
1. Louis Bunyan was likely to harm himself; or
2. Louis Bunyan was not capable of realizing the
consequences of his actions; or
3. Louis Bunyan was not capable of caring for his
own safety.
If the answer to either 1, 2, or 3 is "yes," you may not
allocate any fault to Louis Bunyan and must enter "zero" on
the Special Verdict form in the space for his percentage of
fault.
If your answer to 1, 2, and 3 [is] "no," you may allocate fault
to Louis Bunyan on the Special Verdict form.
57 Thompson v. Cooper, 290 P.3d 393, 398 (Alaska 2012) (quoting Kavorkian
v. Tommy's Elbow Room, Inc., 694 P.2d 160, 166 (Alaska 1985)).
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The City argued that "even if it was reasonably foreseeable that [Louis]
would attempt suicide, fault [could] still be apportioned to [Louis]." The City proposed
an alternative jury instruction that would have prohibited the jury from allocating fault
to Louis only if he "was not capable of exercising reasonable care to prevent his suicide."
It also proposed a special verdict question asking, "Was Louis Bunyan capable of
exercising reasonable care to prevent his suicide?" The superior court overruled the
City's objections and gave instruction 20 to the jury.
In Joseph we recognized that AS 09.17.080 "requires apportionment of
58
damages in 'all actions involving fault of more than one person.' " Specifically we
recognized that in a custodial suicide action "a jury should be permitted to allocate the
claimant's damages in the same way it usually does if multiple legal causes contribute
59 But jury instruction 20 effectively foreclosed the possibility that the jury
to a loss."
could both find the City liable and apportion some of the fault to Louis, thus constituting
reversible error.
The intent of jury instruction 20 was to prevent the jury from attributing
fault to Louis if it found that he lacked the requisite capacity to be held legally
responsible for his actions. In Wilson v. City of Kotzebue we noted that "[t]he general
rule is that voluntary intoxication does not relieve one from liability for the consequences
of his intentional or negligent act, and one who becomes intoxicated is held to the same
60
But we also held that incapacity is a defense
standard of conduct as if he were sober."
58 Joseph , 26 P.3d at 476 n.112 (quoting AS 09.17.080(a)). Because
AS 09.17.080(a) explicitly requires apportionment of fault, we reject Judy's argument
in favor of a per se rule against apportionment of fault in custodial suicide cases.
59 Id. at 476.
60 627 P.2d 623, 630-31 (Alaska 1981).
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to comparative negligence "in the case of one who is so intoxicated, and whose mental
and physical faculties are so impaired, that he is incapable of exercising due care for
himself, where he is in the custody of another who is charged with the duty of caring for
61
In Kanayurak v. North Slope Borough we reversed a trial court's grant of
his safety."
summary judgment, finding that a genuine issue of material fact existed with regard to
incapacity where an inmate had a blood alcohol level of .264%, slurred speech that was
62
difficult to comprehend, and difficulty standing without support.
The facts in Kanayurak illustrate the high threshold for a finding of
incapacity by virtue of intoxication in Alaska. But instruction 20 does not apply this
standard. Instead, jury instruction 20 appears to be derived from an instruction quoted
in a 1961 decision from a California intermediate appellate court,63 which has never been
approved in Alaska. We reject jury instruction 20's incapacity standard because it was
overbroad and effectively foreclosed the possibility of apportioning any liability to
Louis. The evidence that supported the jury's finding that Louis's suicide was
61 Id. at 631. As amended in 1997, AS 09.17.080 requires apportionment of
damages in "all actions involving fault of more than one person." Although Wilson,
decided in 1981, predates this transition to a comparative negligence regime, neither
party disputes that incapacity may completely preclude allocation of fault in the
voluntary intoxication context. Therefore we assume Wilson's applicability here.
62 See 677 P.2d 893, 897-99 (Alaska 1984).
63 See DeMartini v. Alexander Sanitarium, Inc., 192 Cal. App. 2d 442, 448
(Cal. App. 1961) ("[I]f you find from the evidence in this case that at the time of the
accident and immediately preceding it the Plaintiff . . . was in such mental condition that
he was likely to harm himself or was not capable of realizing the consequences of his
acts or of caring for his own safety, and that the defendant hospital, with knowledge of
plaintiff's condition had undertaken to safeguard him and protect him against himself,
then I instruct you that as a matter of law the Plaintiff . . . was not guilty of contributory
negligence." (emphasis added)).
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reasonably foreseeable also provided a basis for the first determinative factor in
instruction 20, which foreclosed the apportionment of damages if "Louis Bunyan was
likely to harm himself."
Because this error had the effect of precluding the possibility that fault
64 Although there is no
could be allocated between Louis and the City, it was prejudicial.
need for a new trial on the issues of negligence and damages, the case must be remanded
for trial proceedings that will allow the jury to decide the allocation of fault under a
legally correct instruction. On remand, the superior court's jury instruction should
announce the proper Wilson incapacity standard and instruct the jury that it must allocate
fault between Louis and the City unless it finds that Louis was so intoxicated and his
mental and physical faculties so impaired that he was incapable of exercising due care
65
for himself. The special verdict form should also reflect this standard, requiring a
percentage allocation of fault between Louis and the City unless the jury finds that
Louis's "mental and physical faculties [were] so impaired, that he [was] incapable of
exercising due care for himself.66
V. CONCLUSION
We AFFIRM the superior court's rulings on the City's motions for
summary judgment and directed verdict as well as its rulings regarding the appropriate
duty of care and the admissibility of expert economic loss testimony. But we VACATE
the judgment and REMAND for further proceedings regarding Louis's capacity and the
allocation of fault between Louis and the City of Hooper Bay.
64 See Thompson v. Cooper, 290 P.3d 393, 398-99 (Alaska 2012).
65 See Wilson, 627 P.2d at 631.
66 Id.
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