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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Association of Village Council Presidents Regional Housing Authority v. Dietrich Mael (4/15/2022) sp-7591
Notice: This opinion is subject to correction before publication in the P ACIFIC 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.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
ASSOCIATION OF VILLAGE )
COUNCIL PRESIDENTS REGIONAL )
Supreme Court Nos. S-17802/17821
HOUSING AUTHORITY, )
)
Superior Court No. 4BE-17-00061 CI
Appellant and )
Cross-Appellee, )
O P I N I O N
)
v. )
No. 7591 - April 15, 2022
)
DIETRICH MAEL, on his own behalf )
and on behalf of his minor children )
D.K. and E.M.; THOMAS MAEL; and )
ROSE MAEL, )
)
Appellees and )
Cross-Appellants, )
)
and )
)
STATE OF ALASKA, )
)
Intervenor/Cross- )
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Bethel, Terrence P. Haas, Judge.
Appearances: Aaron D. Sperbeck and Shane C. Coffey,
Birch Horton Bittner & Cherot, Anchorage, and Thomas
Weathers, The Law Offices of Thomas Eagle Weathers, P.C.,
San Rafael, California, for Appellant and Cross-Appellee.
Susan Orlansky, Reeves Amodio, LLC, Anchorage, Russell
----------------------- Page 2-----------------------
L. Winner, Winner &Associates, PC,Anchorage, and Myron
Angstman, Angstman Law Office, Bethel, for Appellees and
Cross-Appellants. Anna Jay, Assistant Attorney General,
Anchorage, and Treg R. Taylor, Attorney General, Juneau,
for Intervenor/Cross-Appellee.
Before: Bolger, Chief Justice, Winfree, Maassen, and
* [Borghesan,
Carney, Justices, and Eastaugh, Senior Justice.
Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
A boiler exploded in a home owned by a nonprofit regional housing
authority, severely injuring a man who lived there. He sued the housing authority in both
contract and tort, claiming that his lease-purchase contract with the authority included
a promise that it would inspect the boiler, which it had failed to do with reasonable care.
After the man dismissed his contract claim, the housing authority asked the court to
decide as a matter of law that a breach of a contractual promise cannot give rise to a tort
claim. But the superior court allowed the man to proceed to trial on his tort claim, and
the jury awarded over $3 million in damages, including over $1.5 million in
noneconomic damages and separate awards to several of his family members for
negligent infliction of emotional distress. The court reduced the man's noneconomic
damages award to $1 million because of a statutory damages cap, but it excluded the
family members' awards from the amount subject to the cap.
The housing authority appeals. It argues that the superior court erred by
concluding that the contract created a continuing legal duty to inspect the boiler with
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
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reasonable care. It maintains that it should have been granted a judgment
notwithstanding the verdict for that reason. It also argues that it should have been
granted a new trial because it had established that the boiler explosion was caused by a
product defect rather than negligent inspection. Finally, it argues that the family
members' damages for negligent infliction of emotional distress should have been
included in the amount subject to the statutory damages cap. The man cross-appeals,
arguing that the damages cap violates due process because it fails to account for inflation
or the severe nature of his physical injuries.
We uphold the jury verdict because the superior court properly concluded
that the housing authority had an independent tort duty to inspect the boiler with
reasonable care and because the jury had sufficient evidence to find that the explosion
was caused by the housing authority's negligence rather than a product defect. We also
conclude that the superior court properly reduced the damages award; the noneconomic
damages were properly capped at $1 million and the other family members' emotional
distress damages were properly excluded from the amount subject to the cap. We thus
affirm the superior court's judgment on all issues.
II. FACTS AND PROCEEDINGS
A. Facts
TheAssociationofVillageCouncil Presidents RegionalHousing Authority
is a nonprofit corporation that provides housing and housing assistance to persons living
in the Yukon-Kuskokwim Delta region. The housing authority administers a federal
home ownership program established by the Indian Housing Act, which authorizes the
Department of Housing and Urban Development (HUD) to enter into contracts to
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1
provide financial assistance to Indian housing authorities. The program stipulates that
in order to receive government funds, a housing authority must enter into a mutual help
and occupancy agreement (the Agreement) with each family selected to occupy one of
2 The Agreement must contain terms such as the family's required
the provided homes.
initial contribution to the housing authority and its subsequent monthly payments.3 The
Agreement must also stipulate that the family is "responsible for the maintenance and
monthly utility expenses of the dwelling," while the housing authority is responsible for
having in effect procedures "sufficient for ensuring the timely periodic maintenance of
the dwelling by the family."4 Further, the Agreement must allow the family the
opportunity to buy the dwelling under a lease-purchase arrangement.5
Thomas and Rose Mael moved into a home in Chefornak under this
program in 1984. They did not sign the required Agreement until 1989, but the parties
appear to agree that the effective date of their Agreement was the date the Maels moved
in. The Agreement contains the mandated terms noted above, establishing the respective
responsibilities of the housing authority and the "homebuyer" - the occupant who had
not yet become the owner. The Agreement states that the homebuyer is responsible for
the home's maintenance. But it also provides that if "the condition of the property
creates a hazard to the life, health or safety of the occupants, the [housing authority] shall
have the work done" to remedy the problem.
1 Former 42 U.S.C. § 1437bb(b)(1) (repealed 1996).
2 Id. at § 1437bb(e).
3 Id.
4 Id.
5 Id .
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The Agreement does not have an express expiration date. It stipulates that
the "lease under this Agreement" commences upon occupancy and expires when the
purchase price has been fully amortized pursuant to a schedule that provides for "a 25-
year period." The Agreement explains that it can be terminated in two ways: by a
breach of the homebuyer's obligations or by the homebuyer's notice of termination. The
Agreement also identifies the two ways the house can be conveyed to the homebuyer:
The homebuyer may request to purchase it, or the housing authority may require the
homebuyer to purchase it once certain financial thresholds are met. After the housing
authority has given notice that the homebuyer is required to purchase the home, all the
homebuyer's rights under the agreement are unchanged until the purchase is completed.
The price of the Maels' home became fully amortized, and the home was
thus "eligible for conveyance," in 2009. But the home was never formally conveyed to
the Maels; the housing authority never notified the Maels that they now had to purchase
the home, and neither party ever gave the other notice that the Agreement should be
otherwise terminated. The housing authority continued to charge the Maels
administrative fees, and it conducted annual inspections of the home nearly every year
between 1986 and 2011. The March 2011 inspection, which was labeled as an "Annual"
as opposed to a "Final" inspection, did not indicate any problems with the boiler, and
Rose Mael confirmed at trial that the Maels were not aware of any problems at the time.
No more inspections occurred after 2011.
In January 2016 Rose heard a whistling noise coming from the boiler. She
asked Dietrich, her adult son, to take a look at it. As he went to do so the boiler
exploded, injuring him severely. He was thrown against a wall, sprayed with scalding
water and glycol, and knocked unconscious. He spent about a week in a hospital
followed by extensive physical therapy. He testified at trial that he continued to suffer
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from debilitating back pain which prevented him from working, playing with his
children, or engaging in subsistence activities.
B. Pre-Trial Proceedings
In 2018 Dietrich sued the housing authority on behalf of himself and two
of his minor children. He asserted a negligence claim, alleging that the housing authority
assumed a duty to properly inspect the boiler and negligently violated that duty, causing
his injuries. He also asserted a breach of contract claim, alleging that the Agreement
contained "an express and implied contractual duty to properly inspect" the boiler and
that the housing authority violated that duty as well. On behalf of his children, Dietrich
alleged that they had heard the explosion, witnessed their father's injuries, and suffered
emotional distress as a result of the housing authority's breach of its duty to properly
inspect. In its answer the housing authority joined as third-party defendants Burnham
LLC, the manufacturer of the boiler, and Dietrich's parents, Thomas and Rose, "for
allocation of fault and apportionment of damages." The housing authority alleged that
Thomas and Rose's negligent repair and service of the boiler and Burnham's negligent
design caused the explosion. Burnham settled with Dietrich and his two children and
was dismissed from the case before trial.
C. Trial Evidence
Trial began in September 2019 and lasted nine days. The jury heard
testimony from the Maels about the boiler explosion, along with extensive testimony
from medical experts about the scope of Dietrich's injuries and his prospects for
improvement.
The jury also heard testimony about the state of the boiler and the cause of
the explosion. The jury was read portions of the deposition testimony of a housing
authority employee who testified that he was trained and certified in boiler repair. He
did not believe the boiler was defective in any way. He testified, however, that boilers
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could explode if not maintained and that in his opinion - based on the existence of rust
sediment and corrosion on the pressure relief valve - the Maels' boiler had not been
properly maintained. He further testified that the housing authority should continue to
conduct inspections even after a house becomes eligible for conveyance to make sure it
remains safe, and that the housing authority has a duty to make repairs if there is a hazard
to the health or safety of one of its residents. He thought that an inspection after 2011
would have detected any problems with the boiler.
An expert in boiler repair testified that a typical homeowner does not know
how to service and maintain a boiler. The warning label from the boiler's pressure relief
valve was entered into evidence. The label stated that the valve should be removed and
physically inspected by a licensed plumber at least once every three years to identify
corrosion. It also warned against attempting an inspection "on your own" and that
failure to properly inspect could cause serious injury or death.
The housing authority presented the testimony of an engineering expert.
He testified that the Maels' use of the boiler to heat their home was a foreseeable use,
and that the boiler failed to perform as a reasonable consumer would expect. He testified
that the pressure release valve is a boiler's most important safety feature because it is the
"last line of defense against overpressure." It was his opinion that the boiler exploded
because the control system allowed the water to overheat and a malfunction in the valve
allowed the pressure to build until the tank ruptured. He thought the valve failed because
of its age and degradation. He acknowledged that an inspection done six months before
the explosion may not have detected any danger because the valve could have degraded
in six months, though he conceded on cross-examination that an inspection could have
revealed an issue. He thought the risks of the design outweighed the benefits, and that
Burnham, the manufacturer, should have used a more reliable valve.
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The housing authority also called an Indian housing expert to testify about
the meaning of the Agreement. This expert testified that all the housing authorities he
had worked with interpreted the Agreement to mean that homebuyers were responsible
for the maintenance of their homes. In his opinion, the housing authority's responsibility
was limited to fixing hazards to health or safety once it learned of them. He opined that
the housing authority had no duty to inspect the Maels' home after 2009 when the home
became "eligible for conveyance": Twenty-five years had passed since the parties
entered into the Agreement, the price of the house had been fully amortized, and the
house "should have been conveyed." He based this opinion on a 2008 HUD notice, in
effect when the house became eligible for conveyance in 2009. In his opinion there was
no legal relationship between the housing authority and the Maels at the time of the
explosion because the Agreement had terminated by its own terms.
Following arguments from both parties, the superior court ruled that the
Agreement imposed a duty on the housing authority to conduct inspections with
reasonable care and that the duty was still in effect at the time of the explosion. The
court reasoned that while the homebuyer had an obligation to maintain the home,
Congress intended that the relationship be mutual, and the housing authority retained a
duty to make sure the home was safe to live in. The court further held that the parties
intended this arrangement to last as long as they both had an interest in the home.
D. Verdict And Post-Trial Motions
After the close of evidence Dietrich dropped his contract claim while
retaining a claim for tort damages under the theory that the contract gave rise to a tort
duty to inspect the boiler with reasonable care. The housing authority preserved an
objection to a jury instruction explaining that the Agreement "required [the housing
authority] to perform periodic inspections of the boiler and to exercise reasonable care
to discover and remedy any hazardous problems with it" and that the Agreement
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remained "in effect at the time of the boiler explosion." The housing authority also
moved for a directed verdict, arguing that no reasonable jury could find a breach of duty
because the unrefuted evidence established that the Agreement expired in 2009. The
court denied the motion.
The jury returned a verdict in favor of the Maels. It found that the housing
authority was negligent and that its negligence was a substantial factor in causing harm
to the Maels. It concluded that the boiler was not defective and that Thomas and Rose
were not negligent in maintaining it. It attributed 100% of the fault to the housing
authority. It found that Dietrich suffered a severe permanent physical impairment and
awarded him $1,672,000 in economic damages and $1,580,000 in noneconomic
damages, for a total award of $3,252,000. The jury also awarded a total of $175,000 to
Dietrich's family members on their claims for negligent infliction of emotional distress
6
(NIED).
The housing authority moved for a judgment notwithstanding the verdict
(JNOV) and remittitur and for a new trial. In its JNOV motion the housing authority
again argued that no reasonable jury could find it had violated a tort duty to inspect,
because the parties' relationship was contractual and the evidence established
conclusively that their contract ended in 2009. It also argued that the noneconomic
damages Dietrich was awarded should be reduced to $1 million under a statutory
damages cap7 and that the emotional distress damages awarded to the other Mael family
6 Damages may be awarded for the negligent infliction of emotional distress
under a "bystander" theory if "(1) the plaintiff is located near the scene of the accident,
(2) the shock results from a direct emotional impact from the sensory and
contemporaneous observance of the accident, and (3) a close relationship exists between
plaintiff and victim." Kallstrom v. United States , 43 P.3d 162, 165 (Alaska 2002).
7 AS 09.17.010(c).
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members should all fall under the same cap. In its motion for a new trial the housing
authority argued that the unrefuted evidence established that the explosion was
attributable to a defect in the boiler rather than a failure to inspect it.
The superior court granted the housing authority's motions in part. It
concluded that the statutory cap limited Dietrich's noneconomic damages award to
$1 million but that the other family members' NIED claims were sufficiently distinct
injuries that they could not be subject to the same cap. The court denied the JNOV
motion because reasonable jurors could differ on the question of tort liability, and it
denied the motion for a new trial because the verdict was not against the clear weight of
the evidence.
The housing authority appeals the verdict, the court's denial of its JNOV
and new trial motions, an evidentiary ruling, and the court's failure to aggregate all of
the noneconomic damages awards under a single statutory damages cap. The Maels
cross-appeal the application of the cap to Dietrich's damages. The State of Alaska
intervened in the superior court and participates on appeal because the case raises
constitutional challenges to the damages statute. 8
8 See Alaska R. App. P. 514(e) ("The clerk of court shall notify the Attorney
General of Alaska of the case raising the question [of the constitutionality of a state
statute].").
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III. STANDARD OF REVIEW
9
Wereviewdenovo questions oflawinvolvingcontractinterpretation,
jury
10 11
instructions,
and "a statute's constitutionality and interpretation." And unless there
are "genuine disputes of material fact, the existence and scope of a legal duty are [also]
12
questions of law which we review de novo."
"In reviewing orders granting or denying JNOV motions, we must
'determine whether the evidence, when viewed in the light most favorable to the
non-moving party, is such that reasonable persons could not differ in their judgment of
13
the facts.' " "[T]o the extent that a ruling on a motion for [JNOV] involves questions
14
of law, those questions will be reviewed de novo."
"The question of whether to grant or refuse a new trial 'rests in the sound
15
discretion of the trial court.' " "In reviewing the substance of a trial court's order
denying a new trial, we view the evidence in the light most favorable to the non-moving
9 Flint Hills Res. Alaska, LLC v. Williams Alaska Petrol., Inc ., 377 P.3d 959,
967 (Alaska 2016).
10 City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015).
11 C.J. v. State, Dep't of Corr., 151 P.3d 373, 377 (Alaska 2006).
12 Whitney v. State Farm Mut. Auto. Ins. Co., 258 P.3d 113, 116 (Alaska
2011).
13 Alaska Interstate Constr., LLC v. Pac. Diversified Invs., Inc ., 279 P.3d
1156, 1162 (Alaska 2012) (quoting Richey v. Oen, 824 P.2d 1371, 1374 (Alaska 1992)).
14 Id. (second alteration in original) (quoting Sisters of Providence in Wash.
v. A.A. Pain Clinic, Inc., 81 P.3d 989, 999 n.10 (Alaska 2003)).
15 Hunter v. Philip Morris USA Inc ., 364 P.3d 439, 447 (Alaska 2015)
(quoting Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1173 (Alaska 2002)).
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16
party . . . ." We "will only reverse a decision to deny a new trial if the evidence
supporting the verdict was so completely lacking or slight and unconvincing as to make
the verdict plainly unreasonable and unjust." 17
Finally, "[w]e review the superior court's evidentiary rulings for abuse of
discretion."18
IV. DISCUSSION
The housing authority challenges the jury verdict on several grounds. It
argues that the superior court erred by deciding that the Agreement could create a tort
duty that was in effect at the time of the explosion, and that it further erred when it relied
on this legal conclusion in denying the housing authority's motion for JNOV and in
instructing the jury. The housing authority also argues that the court should have granted
a new trial because the jury's conclusion that the boiler was not defective was against the
clear weight of the evidence, and that the court erred when it admitted some of Dietrich's
medical records without a proper foundation.
Finally, the housing authority argues that the damages to other Mael family
members for negligent infliction of emotional distress should have been aggregated with
Dietrich's own noneconomic damages for purposes of the statutory damages cap. The
Maels argue in their cross-appeal that the superior court's application of the damages cap
to Dietrich's award violates due process.
16 Id.
17 Id. (quoting Hogg v. Raven Contractors, Inc ., 134 P.3d 349, 352 (Alaska
2006)).
18 Noffke v. Perez, 178 P.3d 1141, 1144 (Alaska 2008).
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A. The Superior Court Correctly Decided That At The Time Of The
Explosion The Housing Authority Owed The Maels A Tort Duty To
Inspect The Boiler.
The housing authority first argues that the superior court erred by
concluding that it had a duty to inspect the boiler. The housing authority concedes that
the Agreement imposed such a duty; it argues, however, that a contractual promise
cannot create a tort duty to inspect, and that any duty created by the Agreement, whether
contractual or in tort, necessarily expired in 2009 when the Agreement expired. We
conclude that both the Agreement and federal regulations gave rise to a tort duty to
inspect the boiler with reasonable care and that this duty still existed at the time of the
explosion.
1. The Agreement and federal regulations created a tort duty to
inspect the boiler.
Dietrich initially brought claims against the housing authority for breach
of contract and negligence, but he dropped his contract claim. When the housing
authority challenged thecontinued viability ofastand-alonetort claim, the superior court
ruled:
I am going to hold that [Dietrich] may abandon [his] contract
claim and pursue it only as a tort claim even though the duty
that we're talking about appears to have arisen as a
relationship between the parties that is contractual under the
[Agreement]. And because that duty was a duty to inspect,
and because either a failure to inspect with care or perhaps a
failure to inspect altogether is the kind of breach of a duty
that is traditionally available under tort law, [I hold] that in
this instance the contract is relevant and that the breach of the
contract, if found, can also constitute a tort, and that
[Dietrich] can pursue the tort independently.
The housing authority argues that this conclusion was error because, as a matter of law,
a violation of a duty imposed by contract cannot create liability in tort.
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It is true that in most cases "a violation of a duty arising from
contract - such as the duty to pay wages under an employment contract or tender
19 "Promises set forth in a
payment for goods - does not give rise to a tort claim."
20 But there is a
contract must [instead] be enforced by an action on that contract."
significant exception: "[W]hen a party's actions violate a general duty of care, its actions
may give rise to an action in tort, even if the violation also breaches a contract."21
We have recognized such a general duty of reasonable care on the part of
a party who has agreed to conduct inspections. In Adams v. State , individuals injured in
a hotel fire sued the State for negligently inspecting the hotel; the inspector had found
serious fire hazards but failed to take any further action to abate them.22 We observed
that it was "ancient learning that one who assumes to act, even though gratuitously, may
23 and that this "concept of
thereby become subject to the duty of acting carefully"
voluntary assumption of a duty has long been recognized in Alaska."24 We held that
having assumed a duty to conduct fire safety inspections, the State had taken on "a
further duty to exercise reasonable care in conducting [the] inspections, and that liability
19 Jarvis v. Ensminger, 134 P.3d 353, 363 (Alaska 2006).
20 Alaska Pac. Assurance Co. v. Collins, 794 P.2d 936, 946 (Alaska 1990).
21 Jarvis, 134 P.3d at 363; see also Alaska Pac., 794 P.2d at 946 ("Only where
the duty breached is one imposed by law, such as a traditional tort law duty furthering
social policy, may an action between contracting parties sound in tort.").
22 555 P.2d 235, 236, 238-39 (Alaska 1976).
23 Id. at 240 (quoting Glanzer v. Shepard, 135 N.E. 275, 276 (N.Y. 1922)).
24 Id.
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will attach where there is a negligent failure to discover fire hazards which would be
25
brought to light by an inspection conducted with ordinary care."
We applied this rule again in Van Biene v. ERA Helicopters, Inc., in which
26 The estates
the estates of two deceased pilots sued their employer and its insurer.
contended that the insurer, when conducting workplace inspections, had negligently
failed to detect the conditions that caused the pilots to be dangerously overworked.27 We
followed Adams , holding that the insurer could be liable for negligent inspections and
quoting as additional support § 324A of the Restatement (Second) of Torts, which
provides:
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of a third person or his things, is
subject to liability to the third person for physical harm
resulting from his failure to exercise reasonable care to
[perform] his undertaking, if
(a) his failure to exercise reasonable care increases the risk of
such harm, or
(b) he has undertaken to perform a duty owed by the other to
the third person, or
(c) the harm is suffered because of reliance of the other or the
third person upon the undertaking.[28]
Both Adams and this restatement of a commonlawrulesupport thesuperior
court's conclusion in this case. The housing authority undertook to render a
25 Id.
26 779 P.2d 315, 316 (Alaska 1989).
27 Id. at 316-17.
28
Id. at 322 (quoting RESTATEMENT (SECOND) OF TORTS § 324A (A M. L.
INST . 1965)).
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service - regular boiler inspections - to the Maels as homebuyers, a service it should
have "recognize[d] as necessary for the protection of" other persons in the Maels'
household as well as their property. The housing authority may therefore be liable to
those other persons "for physical harm resulting from [its] failure to exercise reasonable
care to [perform its] undertaking." 29
For the contrary view, the housing authority relies primarily on Alaska
Pacific Assurance Co. v. Collins, in which we applied the general rule that "[p]romises
set forth in a contract must be enforced by an action on that contract."30 But Alaska
Pacific can be readily distinguished. A building contractor alleged that his insurer
breached the insurance policy by negligently denying coverage and a defense in a
homeowner's suit involving claims of faulty construction.31 The contractual duties at
issue in Alaska Pacific - to provide insurance coverage and to defend the insured in
litigation - have no analog in a "general duty of care,"32 nor do they implicate the risk
of "physical harm" to third parties addressed by § 324A of the Restatement (Second) of
33 Here, in contrast, the housing authority's contractual duty to inspect carried with
Torts.
it the "further duty" recognized in Adams : "to exercise reasonable care in conducting
34
[the] inspections."
And in Alaska Pacific we explicitly excepted cases involving such
a duty from our holding: "[W]here the duty breached is one imposed by law, such as a
29 Id. (quoting R ESTATEMENT (SECOND) OF TORTS § 324A).
30 794 P.2d 936, 946 (Alaska 1990).
31 Id.
32 See Jarvis v. Ensminger, 134 P.3d 353, 363 (Alaska 2006).
33 See Van Biene , 779 P.2d at 322.
34 555 P.2d 235, 240 (Alaska 1976).
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traditional tort law duty furthering social policy, [then] an action between contracting
parties [may] sound in tort." 35
The housing authority also cites a more recent case in which we declined
to graft a tort remedy onto an action based on contract. In Geotek Alaska, Inc. v. Jacobs
Engineering Group, Inc. a sub-subcontractor on an environmental remediation project
claimed, among other things, that the general contractor negligently caused it economic
harm by failing to enforce provisions in the subcontract that would have helped ensure
that the subcontractor paid the sub-subcontractor for its work.36 We began our
discussion of this claim by noting that "[t]o determine whether a defendant owes a
plaintiff a duty of reasonable care, 'we first determine whether a duty is imposed by
statute, regulation,contract, undertaking, theparties' preexistingrelationship, or existing
37 It is only if we find no existing duty that we look to various policy
case law.' "
considerations - the D.S.W. factors - "to determine whether we should recognize a
38 Here, the duty imposed by contract
negligence duty not otherwise defined by law."
35 794 P.2d at 946.
36 354 P.3d 368, 370, 376 (Alaska 2015).
37 Id. at 376 (quoting McGrew v. State, Dep't of Health & Soc. Servs., Div. of
Fam. & Youth Servs., 106 P.3d 319, 322 (Alaska 2005)).
38 Id. (citing D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628 P.2d 554,
555 (Alaska 1981)). The D.S.W. factors are:
The foreseeability of harm to the plaintiff, the degree of
certainty that the plaintiff suffered injury, the closeness of the
connection between the defendant's conduct and the injury
suffered, the moral blame attached to the defendant's
conduct, the policy of preventing future harm, the extent of
the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting
(continued...)
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(and by regulation, as we discuss next) carries with it the further duty recognized by
"existing case law"; therefore there is no need for us to consider, as we did in Geotek
39
Alaska , whether public policy requires us to recognize a novel tort duty.
We note further that the housing authority's duty to inspect has an
independent source in federal law. The regulations in place at the time the Agreement
was signed placed "overall responsibility" for the home's maintenance and safety on the
housing authority:
The [Indian housing authority (IHA)] shall enforce those
provisions of a Homebuyer's agreement under which the
Homebuyer is responsible for maintenance of the home. The
IHA shall have overall responsibility to HUD for assuring
that the housing is being kept in decent, safe and sanitary
condition, and that the home and grounds are maintained in
a manner that will preserve their condition, normal wear and
depreciation excepted. Failure of a Homebuyer to meet his
38 (...continued)
liability for breach, and the availability, cost and prevalence
of insurance for the risk involved.
D.S.W., 628 P.2d at 555 (quoting Peter W. v. S.F. Unified Sch. Dist., 131 Cal. Rptr. 854,
859-60 (Cal. App. 1976)).
39 We also note that the sub-subcontractor in Geotek Alaska relied solely on
the foreseeability of harm as establishing an extra-contractual duty of care. 354 P.3d at
377-78. We observed, however, that "we have never held that foreseeable economic
harm to an identifiable plaintiff is all that is required to establish a duty of care." Id. at
377. Reviewing the other D.S.W. factors, we concluded that they failed to support the
sub-subcontractor's claim, including the fact that, "as contrasted to negligence creating
a risk of death or physical injury, 'we have ascribed little blameworthiness to ordinary
negligence that merely causes economic . . . harm.' " Id. at 379 (alteration in original)
(quoting Mesiar v. Heckman, 964 P.2d 445, 451 (Alaska 1998)). A breach of contract
that "creat[es] a risk of death or physical injury" - as is at issue here - is more likely
to implicate "a traditional tort law duty furthering social policy" of the sort we
recognized in Alaska Pacific , 794 P.2d at 946.
-18- 7591
----------------------- Page 19-----------------------
obligations for maintenance shall not relieve the IHA of
responsibility in this respect. Accordingly, the IHA shall
conduct a complete interior and exterior examination of each
home at least once a year, and shall furnish a copy of the
inspection report to the Homebuyer. The IHA shall take
appropriateaction, as needed, to remedyconditionsshown by
the inspection, including steps to assure performance of the
Homebuyer's obligations under the Homebuyer's
[40]
agreement.
The housing authority argues that theseregulations did not create a duty but
rather mandated terms to be included in the mutual help and occupancy agreements. But
comparing the regulation's language to that of neighboring sections disproves this
theory.41 The regulation's language is unambiguous as to both its mandatory nature and
where the duty lies: "The IHA shall enforce those provisions . . . . The IHA shall have
overall responsibility . . . . [T]he IHA shall conduct a complete interior and exterior
examination . . . . The IHA shall take appropriate action . . . ."42
Because the housing authority had a duty independent of the contract to
inspect the boiler subject to the proper standard of care, we conclude that the superior
court did not err in its ruling on this issue.43
40 Former 24 C.F.R. § 805.306(d) (1979).
41
Compare id. ("[T]he [housing authority] shall conduct a complete interior
and exterior examination of each home at least once a year . . . ."), with former 24 C.F.R.
§ 805.306(c) (1979) ("[T]he maintenance rules or regulations shall contain provisions
on at least the following subjects: . . . .").
42 See Petitioners for Incorporation of City & Borough of Yakutat v. Loc.
Boundary Comm'n, 900 P.2d 721, 724 (Alaska 1995) ("Unless the context otherwise
indicates, the use of the word 'shall' denotes a mandatory intent." (quoting Fowler v.
City of Anchorage, 583 P.2d 817, 820 (Alaska 1978))).
43 Because the housing authority's challenges to the jury instructions and to
(continued...)
-19- 7591
----------------------- Page 20-----------------------
2. The housing authority's duty to inspect existed at the time of the
boiler explosion.
The housing authority argues that whether its duty was in contract or tort,
the duty expired long before the boiler exploded. It concedes that the Agreement
required regular inspections, but it contends that any duty it had by contract expired 25
years after the Maels moved in, when federal regulations made the home eligible for
conveyance. The housing authority further contends that once it stopped its annual
inspections, the Maels maintained and inspected the boiler themselves, indicating their
understanding that the responsibility had shifted to them. But we agree with the superior
court's conclusion that under the terms of the Agreement the housing authority retained
the duty to inspect until the home was formally conveyed and the Maels were given legal
title to it.
a. Contract language
Under the de novo standard of review, "we assess the expectations of the
parties to the contract by 'examining the language used in the contract, case law
interpreting similar language, and relevant extrinsic evidence, including the subsequent
44
conduct of the parties.' "
The housing authority's contractual argument relies on the
Agreement § 3.2, which provides that the "lease under this Agreement . . . shall expire
when the Initial Purchase Price has been fully amortized." Because the initial purchase
43 (...continued)
the court's denial of its motion for JNOV rest on the same theory - that the court erred
by deciding that "[n]egligence can be found by a person or entity failing to exercise
reasonable care in performing a duty or promise set out in a contract" - we reject these
challenges as well.
44 Black v. Whitestone Ests. Condo. Homeowners' Ass'n, 446 P.3d 786, 791
(Alaska 2019) (quoting Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska
2004)).
-20- 7591
----------------------- Page 21-----------------------
price is amortized over 25 years, the housing authority argues that the Agreement and
all of the housing authority's duties under it expired in 2009, 25 years after the Maels
moved in. The housing authority essentially argues that the lease and the Agreement are
the same thing: When the lease expires upon full amortization of the purchase price, the
Agreement expires as well.
But we interpret the term "lease" as referring to some subpart of the
Agreement. The contract uses the shorthand term "Agreement" to mean the whole
mutual help and occupancy agreement - the parties' entire written contract. The
contract provides, "This Mutual Help and Occupancy Agreement ('Agreement') is
entered into by and between AVCP RHA ('IHA') and the Homebuyer whose
signature(s) appear below." A later provision addresses "the Homebuyer's lease under
this Agreement." Under the Agreement the "term of the lease" is the period during
which the homebuyer is required to make monthly payments toward the "acquisition of
ownership." The Agreement specifies the two ways it can be terminated: The housing
authority may terminate it if the homebuyer breaches it, and the homebuyer may
terminate it apparently for any reason. In either instance, the party seeking to terminate
must give the other party written notice. And " 'Termination' as used in this Agreement
does not include acquisition of ownership by the Homebuyer." It is undisputed in this
case that the homebuyers did not acquire ownership of the home and that neither party
gave the other notice of termination.
The Maels observe that to accept the housing authority's argument that the
Agreementsimply terminated when the purchase pricewas fully amortized "would mean
that the family would continue to live in a house, with legal title still held by the Housing
Authority, but neither party would have any obligations to the other" - a result the
Maels contend would be "nonsensical." Notably, the Agreement provides that once the
housing authority "has given notice . . . that the Homebuyer is required to purchase his
-21- 7591
----------------------- Page 22-----------------------
Home, and until the Homebuyer purchases his Home, he shall have all the rights of a
Homebuyer . . . and shall be subject to all the obligations of this Agreement." Although
a strict reading of this sentence would indicate that the parties' respective rights and
obligations continue until conveyance only if the housing authority "has given notice . . .
that the Homebuyer is required to purchase his Home," we reject that reading as
45 It would be unreasonable to conclude that the housing authority's failure to
unlikely.
give the required notice means that homebuyers lose their contractual rights and
obligations as soon as the home becomes eligible for conveyance, whereas the
homebuyers retain those rights and obligations if the housing authority has given notice.
A common sense reading of the Agreement requires us to conclude that it governs the
parties' relationship until the home is conveyed to the homebuyer or the Agreement is
terminated by either party in accordance with its written notice requirements - neither
of which happened here.46
b. Subsequent conduct
The parties' conduct supports a conclusion that they mutually understood
the Agreement to be in effect at the time of the explosion. The conduct surrounding
45 See Est. of Polushkin ex rel. Polushkin v. Maw , 170 P.3d 162, 172 (Alaska
2007) (When interpreting a contract we will prefer "[a]n interpretation which gives a
reasonable, lawful, and effective meaning to all the terms . . . to an interpretation which
leaves a part unreasonable, unlawful, or of no effect." (quoting R ESTATEMENT (SECOND)
OF CONTRACTS § 203(a) (A M. L. I NST . 1981))).
46
The housing authority also relies on the testimony of its Indian housing
expert that the Agreement expired 25 years after the Maels entered into it. But that
reading led the expert to conclude that there was no legal relationship at all between the
housing authority and the Maels at the time of the explosion; the Maels became squatters
as soon as the purchase price was fully amortized, with neither party owing any duties
to the other. We reject this interpretation as unreasonable; the parties cannot have
intended an automatic trigger date that left the Maels' home in perpetual legal limbo.
-22- 7591
----------------------- Page 23-----------------------
inspections is mixed. The housing authority concedes that it continued to inspect the
home until 2011 - two years after it contends that its duty to do so had expired. It
labels these extra inspections "mistake[s]." But the 2011 inspection was marked as
"Annual" rather than "Final," giving no indication that there would not be another. The
Maels concede that no inspections occurred after 2011. Five years without inspections
may be long enough for the Maels to have reasonably understood that there would be no
more, and there was little evidence that the Maels ever inquired about their status. But
other testimony indicated that inspections werealwaysinitiated by thehousing authority;
the Maels typically waited for the housing authority to act without prompting, and the
jury could conclude that this conduct was consistent with the housing authority's
retention of the duty.
The housing authority also points to testimony from the Maels that they
performed their own maintenance of the boiler after the housing authority's last
inspection in 2011. But this is not convincing on the issue of inspections, as the
Agreement separately addressed the duties to inspect and to maintain, imposing the duty
to maintain on the homebuyer.
More broadly, the housing authority's actions indicate that it understood
there to be a continuing legal relationship with the Maels under the Agreement.
Although the home's purchase price was fully amortized as of 2009, the housing
authority continued to accept the Maels' monthly administrative fees right up to the time
of the explosion. The fees are evidence of both the Maels' expectation of some
continued services and the housing authority's agreement that some services were still
owed. And after the explosion the housing authority repaired damage to the home and
replaced the boiler.
In sum, the language and structure of the contract, along with sufficient
extrinsic evidence, indicate that the rights and obligations imposed by the Agreement
-23- 7591
----------------------- Page 24-----------------------
were intended to remain in effect until the Agreement was terminated or the property was
conveyed. The superior court did not err in deciding that the housing authority's duty
to inspect still existed at the time of the explosion.
c. Federal regulations
Federal regulations also support a continuing duty to inspect. Former 24
C.F.R. § 805.306(d), quoted above, required annual inspections at the time the Maels
moved into the home and entered into the Agreement. The housing authority relies on
a 2008 notice issued by HUD explaining that a housing authority's duty to inspect
mutual help homes "expires when unit ownership is conveyed to the
homebuyer/purchaser, or when unit ownership should have been conveyed to the
47 48 In 2012
homebuyer/purchaser, whichever is sooner." That notice expired in 2010.
HUD "modifie[d] and update[d]" its notice to say that "the recurring inspection
requirement expires when unit ownership is conveyed to the homebuyer/purchaser" -
omitting the "or when ownership should have been conveyed" clause.49 The housing
authority argues that because the house should have been conveyed in 2009, when the
2008 guidance was in effect, its duty to conduct annual inspections of the Maels' home
was permanently extinguished. According to the housing authority's argument at trial,
this meant there was a narrow category of Indian homes that became eligible for
47 U.S. D EP 'T OF HOUS. & U RB. D EV. O FF. OF PUB. & I NDIAN HOUS., PIH-
EINSTATEMENT OF PIH NOTICE 2006-19 (2008).
2008-32 (ONAP), R
48
U.S. DEP 'T OF HOUS. & URB. DEV. OFF. OF PUB. & INDIAN HOUS., PIH-
XTENSION (2009).
2009-30 (ONAP), E
49 U.S. DEP 'T OF HOUS. & U RB. D EV. O FF. OF PUB. & I NDIAN HOUS., PIH-
S), RECIPIENT INSPECTION OF HOUSING UNITS ASSISTED UNDER THE
2012-45 (TDHE
NATIVE AMERICAN HOUSING ASSISTANCE AND SELF-DETERMINATION ACT OF 1996
(NAHASDA) (2012).
-24- 7591
----------------------- Page 25-----------------------
conveyance between 2008 and 2012 which housing authorities had no duty to inspect
even if they still owned them.
We reject the argument that the 2008 guidance shows the intent of the
parties at the time they entered into the Agreement decades earlier. "We discern the
parties' intent by looking 'to the written contract as well as extrinsic evidence . . . at the
50 The housing authority points to no extrinsic evidence
time the contract was made .' "
fromthe 1980s, "the time the contract was made," that would illustrate an intent different
from what we can discern from looking at the written contract and the regulations then
in effect. Furthermore, if subsequent regulations could define the parties' earlier intent,
then we would consider not only the 2008 notice but also the 2012 notice which
"modifie[d] and update[d]" it, and which - presumably intentionally - omitted the
51 Nothing in the 2012 notice indicates
language on which the housing authority relies.
that it applies only to homes that become eligible for conveyance after its issuance. If
the 2008 notice could extinguish a duty in an existing contract, then the 2012 notice
could reinstate it.
50 Lingleyv.AlaskaAirlines, Inc ., 373 P.3d 506, 512 (Alaska2016) (alteration
in original) (emphasis added) (quoting Larsen v. Mun. of Anchorage , 993 P.2d 428, 431
(Alaska 1999)).
51 Cf. Davis Wright Tremaine LLP v. State, Dep't of Admin., 324 P.3d 293,
303 (Alaska 2014) (noting that "a provision's omission in a statute typically is
interpreted to be intentional when the provision is present in a similar statute" (citing 2B
NORMAN J. SINGER & J. D. SHAMBIE SINGER, SUTHERLAND ON STATUTES AND
STATUTORY CONSTRUCTION § 51:2, at 213-14 (7th ed. 2007))).
-25- 7591
----------------------- Page 26-----------------------
In sum, we agree with the superior court's conclusion that, as a matter of
law, both the contract and the federal regulations created a duty to inspect that was in
effect at the time of the explosion. 52
B. The Superior Court Did Not Abuse Its Discretion By Denying The
Housing Authority's Motion For A New Trial.
The housing authority next argues that the superior court should have
granted its motion for a new trial as it was against "the clear weight of evidence" for the
jury to conclude that the housing authority breached a duty to inspect and that the boiler
explosion was not caused instead by a design defect.
The housing authority's third-party claim against Burnham was based on
the theory that the explosion must have been caused by a defect in the boiler. Burnham
settled with Dietrich and his children before trial and was dismissed from the suit. For
53
purposes of considering whether to allocate fault to Burnham, the jury was instructed
on both of our recognized tests for determining whether a manufactured product is
defective: (1) the boiler "failed to perform as safely as an ordinary consumer would
expect when used in an intended or reasonably foreseeable manner" (the consumer
expectations test), and (2) "the boiler's design legally caused injury and . . . Burnham
LLC fail[ed] to prove, in light of the relevant factors, that, on balance, the benefits of the
52 Because we agree with the superior court's conclusion that the housing
authority's duty to conduct annual inspections continued after the date of its last
inspection in 2011, we do not need to discuss the housing authority's argument that it
cannot have been negligent for failing to detect a problem with the pressure relief valve
during the 2011 inspection.
53 See AS 09.17.080(a)(2) (requiring trial court to instruct jury to consider
"the percentage of the total fault that is allocated to each claimant, defendant, third-party
defendant, person who has been released from liability, or other person responsible for
the damages").
-26- 7591
----------------------- Page 27-----------------------
54
design outweigh the risk of danger inherent in such design" (the risk-benefit test). The
jury found that Burnham did not "supply a defective boiler." We conclude that there was
sufficient evidence to support the jury's decision that the housing authority failed to
prove that the boiler was defective under either design defect test.
1. Consumer expectations test
The housing authority relies on testimony from its boiler expert which it
claims is uncontradicted evidence proving a product defect under the consumer
expectations test. The expert observed that the Maels were using the boiler for home
heating, which was its intended and foreseeable use. He concluded that the pressure
relief valve was not functioning properly and was allowing the pressure inside the boiler
to rise to a level beyond the strength of the tank to contain it, which resulted in the
explosion. When asked if the boiler was well maintained, the expert testified that he did
not "see any specific issues with the [valve or] the boiler itself." Based on the age of the
unit, his review of the components, and testimony that the boiler was whistling shortly
before the explosion, he concluded that the boiler may have exploded even if it had been
inspected six months before, because the valve could degrade in that amount of time.
But the expert also testified that the pressure valve was not poorly designed
but rather "wasn't sufficient based on the age and the use to prevent [the explosion]."
The jury heard that the boiler was 30 years old and that after the explosion the housing
authority replaced it with one of the exact same model. And a housing authority
repairman testified that the pressure valve clearly was not maintained, as evidenced by
corrosion and signs of leakage, and that he did not believe the design was defective. A
jury that believed this version of the facts "could intelligently conclude that the [boiler]
54
See Gen. Motors Corp. v. Farnsworth, 965 P.2d 1209, 1220 (Alaska 1998)
(quoting Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 884 (Alaska 1979)).
-27- 7591
----------------------- Page 28-----------------------
55
was [fit] for ordinary use" and therefore reject a design defect theory based on the
consumer expectations test.
2. Risk-benefit test
The housing authority also relies on its boiler expert's testimony to argue
that the Maels "failed to show that on balance the benefits of the challenged design
outweighed the risk of danger inherent in such design." The expert testified that the
explosion could have been avoided if the boiler had a more reliable pressure relief valve.
But weighing the risks and benefits of the chosen design is only one element of the risk-
benefit test; the housing authority also had to convince the jury that the "boiler's design
56
legally caused injury."
There was enough evidence for a jury to reasonably conclude
that the explosion was not caused by a design defect but rather was due to the boiler's
age and condition, factors out of Burnham's control. The evidence that something other
than the design caused the boiler to explode was not "so completely lacking or slight and
57 we therefore
unconvincing as to make the verdict plainly unreasonable and unjust";
affirm the superior court's denial of the motion for a new trial on the product defect
issue.
C. The Admission Of Dietrich's Medical Records Without A Proper
Foundation Was Harmless Error.
The housing authority argues that the superior court abused its discretion
when it admitted medical records under the business records exception to the hearsay
rule without the required foundational testimony of a records custodian. "As a general
55 Id. at 1221.
56 See id. at 1220.
57 Hunter v. Philip Morris USA Inc ., 364 P.3d 439, 447 (Alaska 2015)
(quoting Hogg v. Raven Contractors, Inc ., 134 P.3d 349, 352 (Alaska 2006)).
-28- 7591
----------------------- Page 29-----------------------
rule hearsay statements are inadmissible at trial unless they fall under an enumerated
58
exception or exclusion . . . ."
"Medical records kept by hospitals and doctors are often
59 This exception, found in Alaska Rule
admitted under the business records exception."
of Evidence 803(6), allows records that are otherwise hearsay to be admitted if five
requirements are met:
[F]irst, the record must be of a "regularly conducted business
activity"; second, the record must "be regularly kept"; third,
the source of information "must be a person who has personal
knowledge"; fourth, the information must have been
"recorded contemporaneously with the event or occurrence";
and fifth, "foundation testimony by the custodian of the
record" must be provided.[60]
The housing authority does not argue that Dietrich's medical records could
not substantively qualify for the business records exception; it does not question the
records' content or authenticity. It argues only that the fifth of the Rule's five
requirements was not met: There was no foundation testimony provided by the records'
custodian. The superior court acknowledged this shortcoming when admitting the
records over the housing authority's objection: "I am going to let them in as business
records. I would note that it is true that the foundation for that was somewhat thin. On
the other hand, medical records aresuch acommonand well-understood exception under
the hearsay rules . . . ."
58 Wassillie v. State, 411 P.3d 595, 600 (Alaska 2018).
59 Liimatta v. Vest, 45 P.3d 310, 318 (Alaska 2002).
60 Wassillie, 411 P.3d at 600 (quoting Noffke v. Perez, 178 P.3d 1141, 1147
(Alaska 2008)).
-29- 7591
----------------------- Page 30-----------------------
It was error to admit the records without the foundational testimony
required by Rule 803(6). But that conclusion does not end our inquiry; the housing
61
authority "must still show that the error was harmful or prejudicial."
"The test for determining whether an error was harmless is 'whether on the
whole record the error would have had a substantial influence on the verdict of a jury of
62 The housing authority posits two theories of prejudice: The
reasonable laymen.' "
error allowed the jury to consider hearsay evidence of Dietrich's "medical issues,
diagnosis, and prognosis," and the error allowed him to use the sheer "volume of the
records (hundreds and hundreds of pages) to reinforce the seriousness of the injuries."
While neither argument calls into question the jury's finding of liability, the arguments
could, if accepted, affect the amount of damages awarded.
We conclude, however, that any effect this evidence could have had on the
jury was harmless. The jury was exposed to the same information in unobjectionable
ways. The jury saw the stack of medical records during the testimony of a medical
expert, who relied on them in his testimony and described the volume as "[p]ushing 600
pages." And the jury learned of the records' content through the extensive testimony of
medical experts including two doctors and a rehabilitation specialist, along with
Dietrich's own testimony about his injuries. The housing authority's brief discussion of
this issue on appeal does not suggest any information the jury could have learned from
the erroneously admitted medical records that was both prejudicial and not otherwise in
evidence. Because the error could not have had a substantial influence on the jury, the
61 Noffke, 178 P.3d at 1147; see also Jones v. Bowie Indus., Inc ., 282 P.3d
316, 328 (Alaska 2012) ("Even though admission of evidence is erroneous, we will
reverse only if the error was not harmless.").
62 Noffke, 178 P.3d at 1147-48 (quoting Dalkovski v. Glad, 774 P.2d 202, 207
(Alaska 1989)).
-30- 7591
----------------------- Page 31-----------------------
superior court's failure to require foundational testimony from a records custodian was
harmless error.
D. The Superior Court Did Not Err By Applying The Statutory
Noneconomic Damages Cap To Dietrich's Award.
ThejuryawardedDietrich $1,580,000in noneconomicdamages,acategory
the jury instructions defined as "a fair amount to compensate him for past and future pain
and suffering, loss of enjoyment of life, and physical impairment resulting from the
injury." The superior court reduced that award pursuant to AS 09.17.010(c). The statute
provides that when noneconomic damages "are awarded for severe permanent physical
impairment or severe disfigurement," they "may not exceed $1,000,000 or the person's
63
life expectancy in years multiplied by $25,000, whichever is greater."
The Maels argue that the court's reduction of the damages award violated
Dietrich's substantive due process rights in two ways. First, they argue that imposing
the cap is "arbitrary and irrational" because "inflation has significantly eroded the value
of the award" since the time the legislature decided the cap's amount. Second, they
argue that the cap "unreasonably fails to allow an exception for a plaintiff with the most
serious imaginable non-economic injuries." The Maels acknowledge that we have
upheld the cap's constitutionality in previous cases, but they argue that those cases
involved facial challenges to the statute, whereas they are challenging the statute only
64 They argue that they should prevail even under rational basis
as applied to Dietrich.
63 AS 09.17.010(c).
64
A facial challenge to a law's constitutionality alleges that the law is
unconstitutional "as enacted"; we will uphold a law against a facial challenge "even if
it might occasionally create constitutional problems in its application, as long as it 'has
a plainly legitimate sweep.' " State v. Planned Parenthood of the Great Nw., 436 P.3d
984, 1000 (Alaska 2019) (quoting Planned Parenthood of the Great Nw. v. State, 375
(continued...)
-31- 7591
----------------------- Page 32-----------------------
review, but also that we should apply intermediate scrutiny because noneconomic
interests are at stake - namely Dietrich's "very will to live."
1. We review the due process claims for rational basis.
"Substantive due process is a doctrine that is meant to guard against unfair,
65
irrational, or arbitrary state conduct that 'shock[s] the universal sense of justice.' " "We
have employed three standards under which claims of substantive due process violations
66
may be reviewed: strict scrutiny, intermediate scrutiny, and rational basis review."
Strict scrutiny is reserved for those cases in which "a law substantially burdens a
fundamental right"; in such cases "the State must articulate a compelling state interest
that justifies infringing the right and must demonstrate that no less restrictive means of
67
Intermediate scrutiny is applied when "state action
advancing the state interest exists."
interferes with an individual's liberty interest that is not characterized as fundamental";
in such cases "the State must show a legitimate state interest and a 'close and substantial
68 The most
relationship' between that interest and the chosen means of achieving it."
lenient level of scrutiny is rational basis review, under which "the party claiming a
64 (...continued)
P.3d 1122, 1133 (Alaska 2016)). An as-applied challenge alleges that although the law
may be constitutional in some circumstances, it is unconstitutional under the particular
facts of the case. State v. ACLU of Alaska , 204 P.3d 364, 372 (Alaska 2009).
65 Doe v. Dep't of Pub. Safety, 444 P.3d 116, 125 (Alaska 2019) (alteration
in original) (quoting Church v. State, Dep't of Revenue, 973 P.2d 1125, 1130 (Alaska
1999)).
66 Id.
67 Id. (emphasis in original).
68 Id. at 125-26 (quoting Sampson v. State, 31 P.3d 88, 91 (Alaska 2001)).
-32- 7591
----------------------- Page 33-----------------------
substantive due process violation has the burden of showing that there is no rational basis
for the challenged legislation." 69
"[W]e have consistently held that restrictions on the types or amounts of
damages that a plaintiff can pursue in court impair economic interests only" and
therefore are subject to the most lenient scrutiny, rational basis review.70 Both of the
Maels' challenges to the statutory damages cap are economic. Their first challenge -
that the statute arbitrarily fails to account for inflation - is squarely about the "amount[]
of damages that a plaintiff can pursue."71
The Maels argue that their second challenge - that the cap does not
account for themostseriouslyinjured plaintiffs -requiresintermediatescrutiny because
the extent of Dietrich's injuries implicates his will to live. But we rejected essentially
the same argument in C.J. v. State, Department of Corrections, in which a woman who
had been attacked by a man out on parole sued the State for negligence.72 The superior
73 On appeal the
court ruled that her damages were subject to the $400,000 damages cap.
plaintiff argued that the cap violated the Alaska Constitution's equal protection clause
by creating two separate classes of plaintiffs: those fully compensated because their
noneconomic damages fell below the cap and those who could not be fully compensated
69 Id. at 126.
70 L.D.G., Inc. v. Brown, 211 P.3d 1110, 1132 (Alaska 2009) (quoting C.J. v.
State, Dep't of Corr., 151 P.3d 373, 379 (Alaska 2006)).
71 Id. (quoting C.J., 151 P.3d at 379).
72 151 P.3d at 376.
73 Id . at 377; see AS 09.17.010(b) (limiting noneconomic damages "arising
out of a single injury or death" to $400,000, "[e]xcept as provided under (c) of this
section" providing the higher cap "when the damages are awarded for severe permanent
physical impairment or severe disfigurement").
-33- 7591
----------------------- Page 34-----------------------
74
because their damages were reduced by the cap. We concluded that the plaintiff's
interests were economic and rejected the notion that a "disproportionate amount of pain
and suffering compared to monetary loss" warranted a higher level of scrutiny. 75
The Maels also argue that the degree of Dietrich's suffering is so elevated
that an interest higher than the merely economic is necessarily implicated. While the
degree of Dietrich's injury may be heightened, as in C.J., the nature of his claim is still
76
about the "amount[] of damages that [he] can pursue" and is therefore economic.
Rational basis review thus applies to both of the Maels' due process arguments. Their
burden to prove the statute's unconstitutionality "is a heavy one, for if any conceivable
legitimate public policy for the enactment is apparent on its face or is offered by those
defending the enactment, the opponents of the measure must disprove the factual basis
for such a justification."77
2. The statutory cap's failure to account for inflation does not
violate Dietrich's right to due process.
The Maels contend that the damages cap violates Dietrich's right to
substantive due process, as applied to him, because time and inflation have arbitrarily
reduced the cap's real value from the level the legislature considered appropriately
compensatory when the cap was enacted in 1997. The Maels argue that if the cap is
adjusted for inflation, as it should be, Dietrich's jury award falls below it.
74 C.J., 151 P.3d at 378.
75 Id. at 380-81.
76 L.D.G., Inc., 211 P.3d at 1132 (quoting C.J., 151 P.3d at 379).
77 Doe v. Dep't of Pub. Safety, 444 P.3d 116, 126 (Alaska 2019) (quoting
Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447,
452 (Alaska 1974)).
-34- 7591
----------------------- Page 35-----------------------
As a preliminary matter, we reject the Maels' characterization of their
argument as an as-applied challenge. "An as-applied [constitutional] challenge requires
78 while a
evaluation of the facts of the particular case in which the challenge arises,"
facial challenge means "that there is no set of circumstances under which the statute can
be applied consistent with the requirements of the constitution."79 The Maels argue that
"there is no rational basis for limiting such a plaintiff to an award worth only 60% of the
value of the award the legislature approved." But they do not explain why the 60%
figure should have any special significance, and all litigants are affected by inflation to
some degree. If the cap's failure to account for inflation violates due process as it is
applied in this case, then there is "no set of circumstances under which the statute can be
applied consistent with the requirements of the constitution."80
We have repeatedly upheld the constitutionality of the noneconomic
damages cap as against facial challenges. Shortly after the statute was passed, a group
of plaintiffs and prospective plaintiffs sought a declaratory judgment that the cap was
unconstitutional because it violated the Alaska Constitution's equal protection and due
process clauses.81 In Evans ex rel. Kutch v. State an equally divided court upheld the
superior court's ruling that the cap did not violate either protection.82 We first concluded
that "the plaintiffs' interests in unlimited damages are merely economic" and that the
78 Dapo v. State, Off. of Child.'s Servs., 454 P.3d 171, 180 (Alaska 2019)
(alteration in original) (quoting Kyle S. v. State, Dep't of Health & Soc. Servs., Off. of
Child.'s Servs., 309 P.3d 1262, 1268 (Alaska 2013)).
79 State v. ACLU of Alaska , 204 P.3d 364, 372 (Alaska 2009).
80 Id.
81 Evans ex rel. Kutch v. State, 56 P.3d 1046, 1048, 1050 (Alaska 2002).
82 Id. at 1070.
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State's enumerated interests in applying the cap - discouraging frivolous litigation,
83
curbing excessive damages awards, and controlling insurance rates - were legitimate.
We applied the "low end" of the sliding scale for review of equal protection claims,
which requires a substantial relationship between the legislative objectives and the
statute.84 We recognized a substantial relationship and held that the cap therefore did not
violate equal protection.85
We rejected an argument raised by the appellants in Evans that across-the-
board application of a single cap was not substantially related to the legislature's goals
because it failed to account for rural Alaskans' higher costs of living.86 The Maels'
inflation argument relies on similar logic: that the statute is unconstitutional because it
does not provide all Alaskans with compensation of the same real value. In Evans we
noted that "[t]here is also no violation of equal protection merely because the damages
caps do not provide for cost of living adjustments."87 And because the "substantive due
83 Id. at 1052-53.
84 Id. at 1054.
85 Id. at 1055.
86 Id. at 1054.
87 Id. at 1055.
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process test is a more deferential version of the equal protection test already discussed,"
88
the statute complied with due process as well.
89
The Evans decision is not binding because the court was evenly divided.
But in C.J. we adopted Evans 's controlling opinion and relied on it in rejecting facial and
90 We reiterated that
as-applied challenges to the noneconomic damages cap.
noneconomicdamages awards are "subject to minimal protection"; theyareby definition
one-time awards and therefore not "source[s] of sustaining income" that would merit
higher protection.91 We concluded that the means-end fit between the cap and the goal
of lowering the cost of insurance was satisfied: the legislature was entitled to decide that
large damage awards overestimate the value of a victim's noneconomic loss, and it could
reasonably conclude that alternative ways of addressing insurance costs would be less
fair than the cap.92
Although in C.J. we addressed an equal protection challenge, the equal
protection analysis involves a more exacting standard than the rational basis review we
88 Id. The dissenting opinion of the equally split court in Evans would have
held that the cap violated equal protection. The dissent disagreed with the controlling
opinion's conclusion that the interest in damages is purely economic and receives only
the lowest level of equal protection scrutiny. Id. at 1072 (Bryner, J., dissenting). The
dissent also disagreed with the controlling opinion's means-to-end analysis. Id. at 1074.
The dissent did not address due process as it related to the damages cap.
89 L.D.G., Inc. v. Brown, 211 P.3d 1110, 1130 (Alaska 2009).
90 C.J. v. State, Dep't of Corr., 151 P.3d 373, 375, 379-81 (Alaska 2006).
91 Id. at 380.
92 Id. at 381.
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93
apply in due process cases. The Maels do not point to any compelling reason for us to
change our analysis in Evans and C.J. We must therefore reject their facial challenge to
the noneconomic damages cap.
3. The damages cap rationally considers the extent of a plaintiff's
suffering.
The Maels next argue that we should limit C.J. and Evans by making
exceptions for the "most serious imaginable non-economic injuries," observing that
Dietrich has suffered an extreme form of pain. They argue that the cap has left Dietrich
so undercompensated that it has lost any substantial relationship to the legislative
purposes. Because this argument relies on the specific facts of Dietrich's case - the
extent of his injuries - it is appropriately characterized as an as-applied challenge. 94
But our analysis in C.J. still controls. The victim in C.J. argued that it was
"irrational to single out the most severely injured tort victims to pay for the reduction in
95
premiums." She argued that the inequity was especially " 'exacerbated' when applied
to her because (1) as a rape victim, her injury involves a 'disproportionate amount of
pain and suffering compared to monetary loss' and (2) as a low-wage earner her
96
'recovery will depend almost entirely on noneconomic damages.' " We rejected the
plaintiff's argument, noting that "while limiting the noneconomic damages for such a
grievous injury may seem harsh, we have held that 'under a minimum scrutiny [equal
93 Evans, 56 P.3d at 1055.
94
See Dapo v. State, Off. of Child.'s Servs., 454 P.3d 171, 180 (Alaska 2019).
95
C.J., 151 P.3d at 380.
96
Id. at 381.
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protection] analysis, we do not determine if a regulation is perfectly fair to every
individual to whom it is applied.' " 97
Furthermore, the legislature specifically addressed the most seriously
injured plaintiffs by creating two separate damage caps. The cap is set at "$400,000 or
the injured person's life expectancy in years multiplied by $8,000, whichever is greater,"
for "a single injury or death" but it allows awards up to "$1,000,000 or the person's life
expectancy in years multiplied by $25,000, whichever is greater, when the damages are
awarded for severe permanent physical impairment or severe disfigurement."98 Dietrich
was subject to the higher of the two caps.99 Although the cap is not perfectly tailored to
the extent of Dietrich's loss as determined by the jury, we must reject the argument that
the legislature irrationally failed to account for the suffering of the most severely injured
plaintiffs.
E. The Superior Court Did Not Err By Concluding That Dietrich's
Noneconomic Damages And The Other Family Members' Damages
For Negligent Infliction Of Emotional Distress Were Not Subject To
The Same Statutory Cap.
The housing authority also takes issue with the superior court's application
of the noneconomic damages cap. It argues that the court should have aggregated
Dietrich's noneconomic damages award of $1,580,000 with the amounts awarded to his
family members for NIED, totaling $175,000, and applied the cap to the total rather than
capping only Dietrich's award; in other words, that the noneconomic damages to
97 Id. (quoting Eldridge v. State, Dep't of Revenue , 988 P.2d 101, 104 (Alaska
1999)).
98 AS 09.17.010(b)-(c).
99 See AS 09.17.010(c).
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Dietrich, his two children, and his parents combined should have been reduced to no
more than $1,000,000.
The statutory caps are for damages "arising out of a single injury or
100 The determinative question here, therefore, is whether the damages awarded
death."
to Dietrich, his two children, and his parents all arose "out of a single injury." The
superior court decided that the NIED injuries suffered by Dietrich's family members
were "sufficiently distinct" fromDietrich's injury that they weresubject to separate caps.
The housing authority contends, however, that the cap is intended to apply to each
"occurrence," and that all the Maels' claims arose out of a single occurrence, the breach
of the duty to inspect. The Maels counter that the NIED claims are not merely derivative
of Dietrich's injuries, as they involve injuries the NIED plaintiffs suffered directly, and
that holding otherwise would lead to nonsensical results.
"To determine the meaning of a statute, we 'look to the meaning of the
language, the legislative history, and the purpose of the statute and adopt the rule of law
101 "Under our 'sliding
that is most persuasive in light of precedent, reason, and policy.' "
scale approach to statutory interpretation, . . . "the plainer the statutory language is, the
100 AS 09.17.010(b). The statute also states that "[m]ultiple injuries sustained
by one person as a result of a single incident shall be treated as a single injury for
purposes of this section." AS 09.17.010(d).
101 Bohn v. Providence Health Servs.-Wash., 484 P.3d 584, 593-94 (Alaska
2021) (quoting Alaska Spine Ctr., LLC v. Mat-Su Valley Med. Ctr., LLC, 440 P.3d 176,
180-81 (Alaska 2019)).
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more convincing the evidence of contrary legislative purpose or intent must be" ' to
convince this court to adopt a different meaning." 102
Wefirst observethat NIEDinvolvesaninjury uniquetothevictim, separate
fromthe witnessed injury that caused it. We have explained that "[u]nlike claims for loss
of consortium, claims for emotional distress concern injuries that the claimants have
suffered directly, rather than derivative injuries that resulted from an injury to
another."103 But this does not settle the statutory interpretation issue, as the statute uses
broad language for the cap's reach, applying it not just to each injury but to all claims
"arising out of a single injury or death."104 "Arise" means to originate from or to stem
from.105 The statute's plain language shows a legislative intent to include in the cap more
than just a single plaintiff's direct claim.
Our case law, however, does not support an interpretation that would
subject the claims of separately injured plaintiffs to a single cap. In C.J. we addressed
both the cap's application to damages "arising out of a single injury or death" and the
additional limitation of AS 09.17.010(d), which provides that "[m]ultiple injuries
sustained by one person as a result of a single incident shall be treated as a single injury
for purposes of this section."106 We concluded that the plaintiff who was sexually
assaulted three times during one attack was entitled to recover up to the cap amount for
102 Id. at 594 (alteration in original) (quoting Alaska Spine Ctr., LLC , 440 P.3d
at 181).
103 State Farm Mut. Auto. Ins. Co. v. Lawrence, 26 P.3d 1074, 1079 (Alaska
2001).
104 AS 09.17.010.
105 Arise , BLACK 'S LAW DICTIONARY (11th ed. 2019).
106 C.J. v. State, Dep't of Corr., 151 P.3d 373, 382 (Alaska 2006).
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107
each instance of assault. We held that each penetrative act was its own "distinct act[],
108
each an intentional tort, each causing a separate injury."
We explained that the
damages cap "is intended to limit recovery for a single tortious act that causes multiple
injuries"; "[e]liminating liability for distinct tortious acts that cause distinct injuries
would run counter to the stated purpose of the statute to decrease the cost of litigation
'without diminishing the protection of innocent Alaskans' rights to reasonable, but not
109 Central to our
excessive, compensation for tortious injuries caused by others.' "
discussion in C.J. was the fact that the case involved a single victim and multiple
injuries; in the instant case there are multiple victims, each suffering a distinct injury.
In L.D.G., Inc. v. Brown we held that derivative claims arising out of a
single injury are subject to the same cap, but the result was driven by clear statutory
110 Two children who prevailed on a loss of parental consortium claim argued
language.
that the damages cap violated the fairness prong of equal protection as applied to them
because it irrationally required multiple claimants to split a single recovery in a manner
111 The children argued that the statutory
that bore no relationship to their actual losses.
phrase "arising out of a single injury or death" should be interpreted to refer to each
separate claim of a surviving dependent, because each surviving dependent had a
107 Id. at 384.
108 Id. at 383.
109 Id. (quoting Ch. 26, § 1(1), SLA 1997). We also noted that the damages
cap was a derogation of common law and therefore must be construed narrowly. Id. at
383 n.52.
110 211 P.3d 1110, 1135 (Alaska 2009).
111 Id. at 1131.
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112
separate cause of action. We rejected that argument, noting that the lack of modifiers
on "all claims" and language in the legislative history applying the cap per "occurrence"
indicated that "the legislature was aware that multiple individuals could have claims
arising from a single death or injury, and that the legislature nevertheless intended to
apply a single cap to all such claims" arising from each "occurrence." 113
Our reasoning in L.D.G. relied on the fact that the claims at issue were
derivative claims for loss of consortium.114 The legislature expressly identified such
claims as subject to the "single injury or death" cap, intended to cover "the damages
awarded by a court or a jury . . . for all claims, including a loss of consortium claim."115
But we have recognized NIED as involving a separate injury to a different victim, so
L.D.G. 's reasoning does not apply to the emotional distress damages awarded to
Dietrich's children and parents.
Rather, because the Mael family members' NIED claims involve injuries
separate from those suffered by Dietrich, each reflects a "single injury" subject to the
statutory cap. This conclusion is consistent with legislative intent as well as the statutory
language. One of the cap's primary purposes was to ensure fair but not excessive
compensation for tort victims.116 Applying one cap to victims who have suffered distinct
injuries would not be consistent with this purpose. One victim's recovery could leave
other victims with no or a significantly reduced damage remedy. We do not believe the
112 Id. at 1134.
113 Id. at 1135.
114 Id.
115 AS 09.17.010(b).
116 Minutes, House Judiciary Comm. Hearing on H.B. 58, 20th Leg., 1st Sess.
(Feb. 21, 1997) (sponsor statement of Rep. Brian Porter).
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117
legislature intended such a result. The superior court did not err when it decided that
the awards of noneconomic damages to Dietrich and his family members were subject
to separate statutory caps.
V. CONCLUSION
The judgment of the superior court is AFFIRMED.
117 An amendment to narrow the cap to "all claims of a person . . . arising out
of a single injury or death" was adopted by the House Finance Committee out of concern
that the statute "could be interpreted [to mean] that the cap applies in aggre[g]ate," but
that language was omitted from the final version of the bill. Minutes, House Fin. Comm.
Hearing on H.B. 58, 20th Leg., 1st Sess. (Mar. 14, 1997); Ch. 26, § 9, SLA 1997.
The housing authority points to several references to "occurrence" in the
committee minutes and in a sectional summary to indicate that the legislature did not
intend the cap to apply per claimant. Senate Rules Comm., Sectional Analysis of
Proposed H.B. 58 § 9, 20th Leg., 1st Sess. at 2-3 (Apr. 16, 1997); Minutes, Senate Rules
Comm. Hearing on H.B. 58, 20th Leg., 1st Sess. (Apr. 15, 1997) (statement by Rep.
Porter); see Occurrence , B LACK 'S LAW DICTIONARY (11th ed. 2019) ("An accident,
event, or continuing condition that results in personal injury or property damage that is
neither expected nor intended from the standpoint of an insured party."). And we relied
on those passing mentions of "occurrence" in L.D.G., 211 P.3d at 1135. But for reasons
explained above we do not think "occurrence" should be read so broadly as to include
separate injuries suffered by separate victims.
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