*1 and V. CONCLUSION departments, purchase, the size of fire aspects involving financial other the allocation of Forestry Because had a of care to addition, resou rces.47 certain on- fight appeal the initial non-negli- fire this firefighting may the-scene tactical decisions gently, plaintiffs alleged because the discretionary they considered en because operational least some acts of negligence on tail resource allocation decisions or consid part Forestry, we REVERSE the firefighting policy ered decisions of that are dismissal superior below. Because properly charge. vested the officials in A court's attorney's award of fees was based on decision whether or not to use a backfire dismissal, award is RE- also example.48 be an But imple not all conduct VERSED. pro- We REMAND for further menting tactical necessarily decisions should ceedings opinion. with consistent this be immune. BRYNER, Justices, EASTAUGH and not
As noted the Massachusetts participating. court, firefighting clearly other actions are
operational. Harry The court in Stoller & "governmental
Co. noted that immunity does automatically just result because the
governmental actor bad discretion. Discre
tionary actions and decisions that warrant
immunity must be based on considerations of public policy."4 The Massachusetts court held that the decision to use lower water Joseph, Joe JOSEPH and Judith as Per- pressure sprinkler system rendered a Representatives sonal of the Estate inoperable opera was a decision made at the Rudolph Joseph, Appellants, level, tional because it was one that "involved policy no planning choiсe or decision."" Forestry's alleged failure to its em Alaska, Appellee. STATE of ployees working under the influence of ilegal drugs alcohol and clearly cannot be No. S-8518. policy viewed as choice or planning decisio Supreme Moreover, Court of Alaska. n."50 although we are without the record, fully developed benefit of a it is diffi July13,2001. why cult to tell firefighting certain decisions field, made in the alleged such as the failure firewall, post
to build a the failure to look during
outs to watch the burnout the June 8
dinner, adequate or the failure to conduct an
"mop-up," op should not be considered to be
erational in nature. superior court benefit fur- will development
ther factual allegations of these determining plaintiffs' allega-
before if the
tions concern "planning" conduct
"operational" in nature.
id.;
City
(exempting
see also Adams v.
Tenakee
48. See AS 41.15.130
backfires autho-
(Alaska 1998)
Springs, 963 P.2d
regulating
rized
state officials from statutes
(fire department staffing
planning
decisions were
fires).
forest
they
fundamentally
decisions because
were
"re-
decisions).
source
allocation"
The decisions
cit-
49.
not rea- negligently prisoner's failed to sonably suicide We therefore foreseeable judgment remand for the state's reverse the state breached its retrial of claims care and that breach of reasonable Rudolph Jo- cause of harm to that while it was seph's We also hold estate. jurors prospective for cause error to dismiss individually, the rec- examining them without this error ord does demonstrate *4 panel jury trial to be jury or the caused unrepresentative.
II. AND PROCEEDINGS FACTS in Rudolph Joseph was arrested Nome on in May after he struck his cousin glass the face with a 1.75-liter bottle one- charged with third full of rum. He was p.m. 4:25 assault and taken around Center, a Anvil Mountain Correctional State facility, where he was searched Alaska placed in a cell with a video camera. and Joseph booking record was intoxicated. The thirty-one year old stated that he was sign intox" to Alaska Native who was "too booking acknowledge or to that he sheet given opportunity to make tele- had been Stepovich, Kennelly and Michael A. C.R. officer, employed phone arresting calls. The P.C., Kennelly Stepovich, An- Stepovich, & Department, by the Nome Police observed Appellants. chorage, for Joseph without noticeable walked clearly, impairment, spoke softly and had a General, Keck, Attorney Assistant Richard breath, moderate odor of aleohol on his Botelho, Fairbanks, Attorney Bruce M. cooperative, no behav- demonstrated unusual Juneau, General, Appellee. ior, seemed remorseful about his cous- MATTHEWS, Justice, Before Chief learning that she re- in's condition after FABE, BRYNER, EASTAUGH, quired Joseph mentioned or stitches. never CARPENETI, Justices. city alluded to suicide to the and state offi- cers. OPINION EASTAUGH, Justice. Shortly p.m. after 7:00 correc- state
I. INTRODUCTION Joseph's monitoring cell vid- tional officer the camera lens had been prisoners A eo noticed owes its responsive took no action. care to them from reason- obscured. She reasonable harm, latеr another state ably including Ten to fifteen minutes foreseeable self-inflicted Joseph slumped officer found on Rudolph Joseph suicide correctional harm. committed nylon around jail. of his cell with a cord imprisoned in a state Was floor while he was suspended from a resulting his neck. The cord was require jury it error im- support Joseph's cell. Officers from shelf wrongful death case to excuse the state and tried mediately called for an ambulance jury care if the found its of reasonable Joseph, pronounced he was to resuscitate but Joseph's was intentional? We hospital. was, shortly his arrival at the dead after hold that it because intentional suicide nylon drawstring Josephs argue cord was the appeal it was Joseph's pants; sweat it had not been discov- an abuse of discretion to fail to examine prospective jurors ered and taken from him when he arrived at individually before exelud- facility. the correctional ing ground they them on the previously had prosecuted been for criminal offenses Joseph, Rudolph's parents, and Judith Joe state.2 Rudolph's sued the state on behalf estate negligently failing his suicide. will overturn a trial court's juryA returned a verdict for the state. The grant juror challenges denial of for cause Josephs appeal, raising questions about how "only exceptional cireumstances and to was selected and instructed. prevent miscarriage justice."3 Selection jurors by a method which fails to substan III. DISCUSSION tially comply with statutory requirements only if prejudices reversible error the failure
A. ItWas Reversible Error to Exclude party.4 independent We exercise our judg Prospective Jurors Without Exaomin- interpreting ment when the Alaska Rules of ing Individually? Them CivilProcedure.5 days prospective Several before trial 47(c) provides: Alaska Civil Rule *5 jurors summoned, were to be the state indi Challenges for Cause. After the examina- Rule 47(c)(11)1 cated that it would invoke Alaska Civil prospective jurors tion of completed and challenge anyone for cause juror sworn, any before parties may the charged who had ever been criminally by the juror challenge any juror for A cause. litigation state or had been involved in challenged may for cause be directed to later, against days supe the state. Two every question answer pertinent to the parties rior court informed the it had inquiry. Every challenge for cause shall jury instructed the clerk to remove from the by be determined ... court. persons charged list all who had been with provision The rule's text makes no for criminal offenses. The court stated that it preemptive jurors; prospective exclusion of had relied on the state's assertion that it challenge granted only for cause be preemptiion]" would exercise a "blanket to prospective juror after the has been exami persons, all such had acted to minimize implicitly requires ned.6 The rule the court inconvenience for those who would have been prospective juror to examine a individually appear selection, pоssible called to only deciding grant challenge. before whether to disqualified. The court overruled the Jo sephs' objection deleting prospective ju Individual examinations were essential rors from permit the list without an individual deter the court to determine whether they mination court could not be state previously charged had indeed each impartial. fair and challenged prospective juror with a crime. 47(c)(11) (Alaska ground Knight, Under Alaska Civil Rule it is 3. Mitchell v. 394 P.2d challenge for a for cause: "[that is or party challenging party has been a adverse to the action, attorney complained or in a civil or has State, Calantas v. 599 P.2d challenging party or accused been 1979); AS 09.20.040 attorney prosecution." in criminal Alaska 24(c)(11) Criminal Rule contains a similar dis- Municipality Anchorage, 5. See Ford v. qualification, disqualification but limits the years. 654, 655 Standing two We have asked the Alaska Committee on Civil Rules to review the duration disqualification. of the civil rule's 6. See id. Accord Raisanen, v. 114 Mich. People (1982) (hold App. 319 N.W.2d Josephs argue similarly 2. The also that the court ing potential jurors that blanket exclusion of who excluding persons erred in who had been adverse improper had received traffic citations was un litigation. to the state in civil Because there is Michigan governing challenges der rule prospective ju- no indication the court excluded cause). reason, rors for that we do not consider argument. potentially quirements only error if the exclusively on records is reversible Relying only prejudices party.9 individual examina- In errors that failure Calantas caused avoided. These included tions could State,10 disqualified prospective a court clerk have person charged identifying in jurors living proper errors Kodiak and then outside (caused or identical names and by similar only jurors summoned those she could reach addresses), identifying in by telephone.11 We reasoned that errors errors residential (caused by attributing entity charging jury assembling panel constitute "substan state), charges government local comply" only they affect tial failure to when errors. informational substantive objectivity of the selection the random nature or pro We then held that the clerk's potential say that these errors We cannot cess.12 governing technical violations of the statutes preemptive unlikely that exclusion were so prejudice plaintiff's did not selection appellate the rule. The consistent with case.13 what "records" not establish record does jurors. prospective out used to cull were reasoning applies here. Prema- The same that the court The state's brief asserts relied jurors turely excluding prospective some did history "criminal computer-generated jeopardize of the not the random selection they transcript implies printouts." jurors. remaining computer APSIN records.7 were the state's Regardless, appellate record does not Moreover, appellate record does not accuracy gener either the data's establish jury's makeup whether reflect or even al, accuracy as to each excluded or their prospective juror given was excluded juror. prospective Josephs' appellate argues error. The brief 47(c)(11) journal that an internet website and a article argues that Rule
The state Civil support their claim that the error harmed mandatory. support, made exclusion them, they because claim that those sources Penney Malvo v. J.C. Co.8We need cites *6 Nome, population the mandatory, be establish that the whether exclusion was decide Native, site, fifty-four percent potentially reliance on inaccurate infor trial cause that, superseding higher flaw in the selec inci- mation was a "Alaska Natives have or involve process. tion of criminal involvement den[ce] information was ment with the State." This procedure followed here The pot and, as the submitted to the trial court persons who would not have have excluded argues, non-record information not sub state they individually disqualified had been been ject judicial notice should not be used to require Does this error reversal? examined. support appeal.14 But factual assertions on it it Josephs argue The that does because importantly, general do more these statistics jury representa not resulted in a which was any particular person not demonstrate that community. They claim the selec tive of the jury panel, in error from the or was excluded process excluding disproportion tion risked jury disqualifications cаused the that the because, percentage ate of Alaska Natives panel unrepresentative of a cross-sec to be relatively they group high has a argue, community. the tion of incidence of criminal involvement. the Because the record fails to show that jurors by a which does method Selection nature or substantially comply statutory re errors altered the random with selection computerized 12. id. record infor- See 7. Alaska's criminal system as APSIN-the Alaska mation is known Safety Journey Public Information Network. See id. at 150. 13. See State, (Alaska 1995). 895 P.2d 960 n. 23 State, Dep't Natural Resources v. Trans
8. 512 P.2d Co., Ins. 856 P.2d america Premier Calantas, 149; 1993); 210(a); at AS 599 P.2d 09.20.040. R.App. P. Alaska Alaska Evid. R. 102. P.2d at 11. See id. process,"15
objectivity
we de
selection
jail
taking custody
prisoner
of a
cir
under
point.
depriving
prisoner
to reverse on this
cumstances
of normal
cline
'opportunities
protection
for
has a
Jury Correctly Instructed
B. Was the
protect
prisoner against
the risk of self-
About the
a Prisoner's
Inten-
self-destruction,
injury
jail person
where
or
Effect of
tional Suicide?
put
nel
infirmity
"are
on notice of an
or
prisoner
prevents
condition
which
him
Josephs' complaint
claimed that
exercising
degree
the same
of care for
state,
custodian,
Rudolph Joseph's
negli-
as
safety
...
own
that he would
if he had
gently breached its
him from
infirmity
not had the
or condition." That
injuring
himself because
did not take
instruction also stated that
aware that
provide him
nylon
pants,
cord from his sweat
Jailers
prisoner
is intoxicated owe that
"a
cеll,
adequately
monitor him in his
safe
cell,
higher degree
they
of care" than
owe an
Hability
The state denied
and affirma-
sane,
"ordinary
sober
control of
tively
Rudolph Joseph
asserted that
"died as
physical
his mental and
faculties.16
a result of his own intentional actions."
explained
Instruction No. 20
to find
appeal,
Josephs argue
On
that "the
was,
Rudolph Joseph's
harm
as the state
complete
intentional act of suicide is not a
claimed,
actions,
a result of his intentional
negligently failing
defense to a claim for
jury
had to find that his actions were
jury
suicide" and
instruc-
both
intentional and "a
cause of his
special
consequently
tions and
verdict form
death."1
jury.
misdirected
special
Instruction No.
stated that
The instructions
and the
verdict
"LiIntoxi-
cation
required
jury
liability
does not relieve a
form
to return a defense
act,"
consequences
for the
Rudolph Joseph
verdict
if it found that
of his intentional
died
intoxicated,
"person
"as
result of his intentional
actions."
unless the
is so
[his]
intentionally
physical
impaired,
Whether he acted
turned on mental and
faculties are so
incapable
exercising
whether he was "so intoxicated that he could
that he is
care
due
himself."1
not exercise due
care
himself."
pertinent
Likewise,
complex.
special
instructions are not
verdict
form's first
question
jury
Instruction No. 17 informed the
Rudolph Joseph
told the
plaintiff's
The defendant
claims that
Malvo,
579-81.
*7
Joseph's
Rudolph
harm resulted from
own in-
provided:
16.
Instruction No. 17
tentional action.
plaintiff's
In order to
a
find
harm was
required
One who is
law to take or who
actions,
Rudolph Joseph's
result of
intentional
voluntarily
custody
takes the
of another under
you
likely
must decide that it is more
true than
circumstances,
deprive
such as to
the other of
not true:
opportunities
protection
his normal
has a
Rudolph Joseph's
1.
actions were in-
duty
protect
person against
to
unreason-
tentional and
duty encompasses
able
of
Such
the
risk
harm.
legal
2.
that the intentional actions were a
duty
guard against
injury
to
risk of self
or self
cause of his death.
prisoner,
jail per-
destruction
the
where
put
infirmity
you
sonnel are
notice
an
Instructions on the verdict form will tell
of
or
prisoner
prevents
you
Joseph's
condition of the
which
him
what
to do if
decide that Mr.
exercising
degree
from
the same
of care for his
death was a result of his intentional actions.
safety
own
that he would had if he had
had
infirmity
provided:
condition.
18.
Instruction No. 21
aIf
when taken into
is
prisoner,
custody,
person
Intoxication does not relieve a
intoxicated,
police
jailers
and the
and/or
liability
consequences
for the
of his intentional
were aware of it or should have been aware of
act. A
held
who becomes intoxicated is
it, they
higher degree
owe him a
than
care
they
to the same standard of conduct as if
were
they
ordinary
prisoner
owed to an
sane. sober
However,
apply
per-
sober.
this does not
if a
physical
in control of his mental and
faculties.
intoxicated,
is so
whose mental
and
son
physi-
They
duty
prisoner
reasonably
owe such
a
cal faculties are so
that he is
harm,
impaired,
incapa-
including
him from
harm caused
exercising
ble of
due care for
and is in
himself
by his own act to himself.
custody
duty
to care
another who has
provided:
person.
17.
Instruction No. 20
for the intoxicated
intentionally
jailer
1.
acted
Can a
be liable on a claim it
"[i]f [he]
could not have
negligently
prevent
prison-
that he could not exercise
so intoxicated
was
failed
reasonably
er's
It then
for himself."19
asked
due care
foreseeable
prisoner
even
acted intentional-
if
proved that Ru
the state had
jury whether
?ty
inten
dolph Joseph died "as
result of his
duty
jailers
We addressed the
The verdiet form instructed
tional actions."
prevent prisoners
harming
them
any
questions
further
jury not to answer
City
selves in
v.
Kotzebue21
Wilson
and
"yes."
question
the first
if it answered
Kanayurak
Slope Borough.22
v. North
"yes."
jury answered
jailers
prison
Those cases establish that
owe
duty
ers a
to exercise reasonable care for the
Rudolph
jury found that
Jo-
Because
protection of their lives and health.23 This
acts were
cause of
seph's intentional
duty encompasses
duty
self-
death,
special
and the
these instructions
reasonably
inflicted harm that
foreseeab
jury from decid-
verdict form foreclosed
duty
requires
le.24 What this
of a
was
the state
ing whether
depends on the
rec
cireumstances. We have
alleged negligence was a
the state's
whether
ognized,
example,
aware that
finding
injury. Given the
legal cause of
is intoxicated when taken into
intentional,
the verdict form
the suicide was
custоdy
precautions
"must take more
for the
verdict even if the
a defense
sui-
mandated
safety
required
of the
than would be
reasonably
to the state
foreseeable
cide
sane,
ordinary,
prison
in the
an
case of
sober
physical
Rudolph Joseph's intentional acts were
er
control of his mental and
facult
principles
ies."2 These
are consistent with
only legal cause of his death.
not the
jailers
prevailing
view of
owe their
duties
prisoners.26
propriety
appeal turns on the
This
special
verdict
instructions
these
implied
We
in Wilson that
apply
independent
judgment
our
jailers
form.
prisoners
equivalent
owe
considering
passengers.27
common carriers owe
this issue.20
question
special
on the
verdict form
19. The first
Wilson,
24.
at 897;
P.2d
Kanayurak,
State, Dep't
at 628.
v.
read:
Goodlataw
Cf.
(Alas-
Servs.,
Health & Soc.
Rudolph Joseph
that he
If
was so intoxicated
1985) (quoting
ka
from AS 33.30.020: "The com-
himself,
care for
he
could not exercise due
prison
missioner shall establish
facilities.... The
intentionally
act
when he took his
could not
safety
provide
commissioner shall
for the
... of
the defendant State of Alaska
own life. Has
prisoners").
likely
proved
true
that it is more
true than not
Rudolph Joseph died as a result of his
intentional actions?
(citing Wilson,
favorable to the
So
consequences
for the
of his intentional or
supports
evidence
the conclusion that reason
negligent act....
This rule has been held
jurors might
able
have found that even
however,
inapplicable,
in the case of one
intentional,
Joseph's
though
suicide was
his
intoxicated,
who
so
and whose mental
reasonably
suicide was
foreseeable
to the
physical
impaired,
and
faculties are so
state,
duty
the state breached its
incapable
exercising
he is
due care for
Joseph's
prevent
reasonable care to
foresee
himself,
custody
where he
suicide,
able
and that
breach
its
was
charged
duty
another who is
with the
cause of
death.
caring
safety.
for his
There have been
parties' arguments
focus on Wilson
involving
pa
numerous decisions
mental
state,
Kanayurak.
According
to the
tients,
involuntarily
drug
confined
addicts
prisoner's
those cases establish that a
delib-
prisoners,
which have held that recov
provides
erate decision to commit suicide
ery for self-inflicted harm is not barred
complete
a claim
defense to
plaintiff
incapable
where the
was
of exer
suicide,
negligently
prevent
jus-
failed to
cising
due care
virtue
his mental
tifying
special
the instructions
verdict
illness,
addiction,
drug
intoxication.
given
form
here.
cases,
such
if the defendant has or should
condition,
knowledge
plaintiff's
have
of the
that,
Josephs argue
given
a custodi-
be found
if it violated its
duty
an's
from reason-
duty
exercising
plain
due care for the
harm,
ably
very
foreseeable
"the
act to be
safety,
duty
tiff's health and
for such
en
avoided
cannot be used as a com-
[suicide]
compasses
prevent reasonably
plete defense
an
action based on a breach
involving
foreseeable acts
an unreasonable
They
of the
that act."
assert
]
harm[34
risk of
distinguishable
that Wilson is
on its facts and
question presented
here
was
We then held that
it was error to submit
Kanayurak.
They
before us in
therefore
comparative negligence
issue to the
claim that
erroneously
their
in-
jury.35 We reasoned that the evidence re
structed.
quired either of two conclusions-which we
mutually
Wilson was an intoxicated
who
treated as
of which
exelusive-both
precluded
finding
negligent
that Wilson had
suffered buras when he set fire
to his mat
Wilson,
ly contributed to so, rejected doing borough's In we reasoned, Kanayurak's contention that suicide was an properly could not find we lability.42 intentional act that defeated Thus, We we stated: negligent.37 him person may not recover was so on the negligence inquiry of whether the issue Wilson's ing itself to either ing tice of Wilsоn's acting bars Wilson's son committed The evidence acts. garding himself [38] The second intentionally. The intoxicated as to be Wilson's his own in the recovery submitted of two conclusions: Wil an intentional condition, and eliminates conduct conclusion part process; or Wilson the defendant had no imtentional responsibility regardless first Kotzebue, reasonably lent injuries this case compels incapable of tort, injur conclusion (2) conduct. (1) of for his result re where he is prisoner whose intoxication renders her in is so his own intentional conduct...."4 And we ."4 ical act-does consequences quoted capable charged does not relieve one from stated that capable Quoting 4 general faculties intoxicated, not recover for of with the Wilson, not exercising emphasized exercising this defense does not rule-that reiterated are of his intentional or apply and whose mental and so we custody impaired, "in injuries resulting again recognized due care for HERSELF.43 due care for voluntary above, Wilson's the case of one who caring of another who is liability that "a for his intoxication 5 statement, apply he is himself, for the phys safety to a in that if also noted is aware that argument its here on this The state founds intoxicated, prisoner is take must emphasized language in Wilson. precautions safety prison for the more required in an er "than would be the case of Kanayurak committed suicide while Lillian sane, ordinary, in control of sober Slope Borough.39 by the North incarcerated 6 physical his mental and facilities."4 negligence against action Her estate's summary judgm borough was dismissed on Josephs' appeal requires us appeal, mainly argued the estate ent.40 On carefully. to consider these two cases Stare language in the intentional tort Wilson compels give precedential value decisis us claim, given a preclude the estate's prior holdings.47 did not to our But it is not clear protect given jailer's duty Kanayurak actually its re that Wilson and disputes whether Lillian genuine fact about solved the issue now before us. A case is binding precedent holding herself. if its is Kanayurak was unable to not and remanded for trial.41 We reversed only implicit Dictum or assumed. 48 is not Coon, (Alaska 47. v. at See State 36. See id. 631. 1999) (" judicial doctrine of decisis [The stare prior holdings highest of the court accords 37. See id. precedential permit value while still this State ting when the reconsideration issues added). (emphasis 38. Id. (quoting v. conditions warrant.'" State United Ass'n, Cook Inlet 895 P.2d Drift at 39. 677 P.2d 894. Kanayurak, 1995))). 40. See id. Bergt, eg., See, 48. re 241 B.R. (Bankr.D.Alaska 1999) ("[A] binding case not is 41. See id. at 899. precedent point holding on a of law where the only implicit or assumed in the but is decision 42. See id. at 898-99. announced.") (citation omitted); not Maine Yan States, kee Power Co. v. United 44 Fed. Cl. Atomic 43. Id. at 898 & n. 10. ("[A] (Fed.Cl.1999) 372, 376 case will not be binding precedent point on a of law treated as 44. ai 677 P.2d holding only implicit or assumed in where announced.") (citation the decision but is not 631). omitted); (quoting 627 P.2d at Natural Resources Council Wilson, Id. Defense Marine, Inc., Southwest 39 F.Supp.2d Wilson, (S.D.Ca.1999) (noting holding implicit does (citing Id. at 898-99 effect); Cates, have Cates v. precedential
469
see,
did acts would
we will
neither case
holding.49 As
inju
altogether
recovery
bar
of a
squarely
resulting
hold that
his own conduct was not
we
ries
from
jailer from the
prisoner's suicide excuses the
us;
issue,
appeal
Wilson did not
that
before
pris
care to
duty of reasonable
simply
jury
and we
noted that the
had been
55
reasonably
committing a
foresee
oner from
And,
correctly
point."
instructed on "this
suicide.
able
given
point
on that
and the
instruction
Wilson,
factually distinguishable
jury's
damages
jury
from
Wilson is
award of
attempt
Josephs'
did not
case. Wilson
necessarily must have found that his inten
intentionally set fire to
injuries."56
intend suicide. He
tional acts did not cause his
intend
harm
bedding, but did not
his
discussion of the effect of his intentional con
unin
injuries
himself.50
were thus an
His
holding
duct was therefore dictum. Our
was
byproduct,
goal,
not the
of his arson.
tended
preclud
not that Wilson's intentional conduct
authority
no
for our statement
that
We cited
him
asserting
negligence
ed
claim
injuries
person may
"a
not recover for
result
against
jailer,
given
evidence
his
but
51 But
ing from his own intentional conduct."
recovery
it was error
to reduce his
on a
civil and
because Wilson's conduct breached
comparative negligence theory."57 And the
others, including
he
criminal duties
owed
retry
appeal
result on
was that Wilson could
owner,52
jail's
language and Wilson's
this
a com
damage
danger
claim without
holding
principle-
with the
are consistent
parative negligence reduction.
repeatedly expressed in our later decisions-
"allowing onе convicted of an intentional
approvingly
We also observe that Wilson
impose liability
crime to
on others for the
opinions
per
cited several
from other states
consequences
own
conduct
of his
antisocial
pre
failure
mitting claims for
underlying
runs counter
to basic values
our vent intentional suicides.58
3
comparison,
justice system."5
In
criminal
Joseph's
Rudolph
conduct breached no tort
Konayurak
approvingly quoted
In
we
Wil
duty he
others.
or criminal
owed
person may
son's statement
that "a
not re
injuries
resulting
cover for
from his own
legally distinguishable,
is also
be
Wilson
conduct,"
intentional
and held that evidence
only
claim that it
cause it dealt
with Wilson's
Kanayurak's
of Lillian
intoxication raised a
to reduce his
was error
to allow
theory
incapable
dispute
fact
about whether she was
comparative
recovery
negligence
on a
question
exercising
intentional of
due care.59 We therefore re
whether his
.54
715,
76,
14,
Ill.Dec.
N.E.2d
717
Ill.2d
189
619
&
State,
v.
861 P.2d
n. 9
Shaw
(1993) ("[The
1993),
"guilt-in-fact'
affirmative
rule of stare decisis cannot be
we held
to be an
implications
what was decided
extended to
defenses"
that,
defense
like the "traditional
case.");
assumption
comparative negligence,
also 20 Am.Jur.2d Courts
in former
see
of risk and
(2000) ("[A]
binding precedent
plaintiffs might
responsible
§ 153
case is not
focuses on "how
point
holding
only
injuries."
of law where the
for their own
implicit or assumed in the decision but is not
Hummell,
Ardinger
P.2d
See also
v.
(citations omitted)).
announced."
(Alaska 1999)
(noting that we have
735-36
ap-
barring recovery
plied public policy rationale for
See, eg.,
City Anchorage,
385 P.2d
49.
Scheele
only
involving
in cases
serious criminal conduct
others,
intentionally
safety
threatened
homicide,
arson).
rape,
such as
Wilson,
50.
versed jailers duty wrongful death claim.60 seeable and her breached their her estate's care, negli- her estate would have had no jail Kanayurak in that a recognized if gence jury claim a found that she acted duty commensurate with the reason er's intentionally. duty ably harm: "This foreseeable safety encompasses prisoner's health and Nonetheless, Kanayurak did not decide- even self-inflicted harm prevent explicitly or even issue inten- discuss-the reasonably harm is fores assuming that such tionality Having as a defense. no reason to borough that the knew Evidence eeable."6 passing attention, give the issue more than Kanayurak's Lillian have known of or should opinion simply legal- relied on Wilson-a intoxication, depression, suscepti and severe ly factually distinguishable case. The that there bility led us to conclude to suicide key procedural difference between Jo- of material fact about genuine was a issue sephs' Kanayurak case and is that issue borough "had reason to antici whether Rudolph Joseph's capacity actually was attempt.62 Giventhe factu pate" her suicide tried; jury and because the found that he Kanayurak's ability to act dispute about al intentionally, special acted verdict form intentionally, held that we could not af we prevented reaching it from issues. other borough's summary judgment on a firm the however, simply Kanayurak, we reversed prevent theory borough owed no jailer's summary judgment and remand- the suicide.63 so, Having trial. we ed for done needed to necessary go no further. It was not to de- Kanayurak Josephs that is dis The assert Kanayurak trial was to cide how be question presented tinguishable because the was, instructed. The issue central here jailer's duty of reasonable here-whether most, ancillary anticipatory Kanyu- in suicide is ex prevent care to foreseeable rak. if suicide is intentional-was not cused Kanayurak. They squarely before us discussion of Wilson and Ka- state's although arguable that we claim that nayurak acknowledges that these cases do approved" act" "tacitly an "intentional there ability engage in not hold that an inmate's cases, we were defense in institutional suicide complete defense to a intentional conduct is ruling dispose able to issue reasonably foresee claim his suicide was genuine dispute fact about the there was Thus, the cites those cases ablе. state's brief Kanayurak's Lillian intoxication: extent of supporting proposition: this the in "[I]f as "Having presented not had the this issue capable enough acting to be mate is sober Kanayurak, squarely case before it in this intentionally and the suicide risk is not fore approve of the Court did not consider or seeable, then a suicide will be considered an defense...."6 jailer intentional act for which the is not it, squarely hold that in- liable."6 As the state describes Kanayurak did not proposition tentionality to a claim that a would not excuse state from is a defense liability if a intentional and jailer failed to a reason- suicide were both negligently Kanayurak's reasonably The state also ar ably And foreseeable. foreseeable suicide. gues But that under "a squarely did not raise issue. Wilson briefs holding found liable for the sui and our should be our reliance Wilson sane, who commits an Konayurak genuine there fact cide of a sober inmate unexpected By extent of and unforeseeable suicide." dispute about a material issue-the for the implication, could be liable Kanayurak's Lillian intoxication-could sane, expected of a silently reasoned or foreseeable suicide read to indicate that we attorney Josephs' 64. was a member of the 60. id. at 899. Kanayurak. represented law firm Wilson,; (citing 61. Id. at 627 P.2d at Emphasis added. 62. See id. at 897-98. Seeid. &n. (who intentionally).
sober
thus acts
explains why
neither
case
*12
Likewise,
authorities,
the state's brief cites
jailer
should
a
bar
claim that a
negligently
(Second)
including Restatement
of Torts
steps
prevent
failed to take
рrisoner's
to
a
(1965),
proposition
§
302B
that "[iJf
foreseeable suicide. We conclude that these
by
the risk of intentional conduct
a
principles provide
legal support
doubtful
foreseeable,
jail
is not
then the
is not liable
applying
language
Josephs
Wilson's
to the
by
for intentional harm caused
the inmate."
case.
argues
The state's
also
"a
brief
that
rela-
First,
reasonably
a
foreseeable
tively
intentionally
sober
in-
[who]
occurrence
cannot
intervening/su
be an
jures
... may
damages,
himself
not recover
perseding cause if the
duty
actor has a
to
jailer's
regardless
negligence."
of the
But
prevent
that occurrence.67 If his suicide was
passages quoted
the other
above from its
reasonably
jailer, Rudolph
foreseeable to his
support
brief
that Kanayurak
conclusion
Joseph's
conduct could not have been an
squarely
did
hold that
ais
death,
intervening/superseding
cause of his
complete
jailer
defense to
claim that a
excusing
alleged
the state's
negligent breach
negligently
prevent
prisoner's
failed to
duty
context,
of the
it owed him.
In this
an
foreseeable suicide. Now that
that
issue is
intervening/superseding
analysis
cause
co
us,
squarely before
we must consider it and
with
duty analysis.
incides
Only if an
decide the extent
to which this case is re-
intentional act of suicide
reasonably
was not
solved
what we said in Wilson and Ka-
foreseeable
would it relieve the
of a
nogyaurak.
duty
prevent
that suicide. But
in that
We note at
treating
the outset
that
an
event,
would not have breached its
complete
intentional suicide
as
defense
prevent
the suicide.
scientifically problematic
be
in the abstract.
have suggested
Writers
that no suicide is
Second,
jailer's
excusing
intentional,
truly
because it
not an
exercise
breach of
cannot easily
squared
of free will.66
way assumption
with the
usually
of risk
in
Typically
arises
Alaska.
justifica-
We turn now to
defendant
the theoretical
as
tions for
serts
that a claimant
treating
voluntarily
has
intentional conduct as a
as
complete
posed by
sumed the risk
defense here. The
the defendant's
state claims
application
conduct.68
usually
Its
turns on
Kanayurak
that Wilson and
reflect
"well-
principles";
recognizes
established tort
whether the
support,
accepts
in
claimant
(1)
poses.69
(2)
the risks the defendant's conduct
causation,
superseding
cites
assump-
risk,
(8)
(Second)
tion of
normally requires
Restatement
It
evidence that the claim
508(8) (1965).
§
Torts
Kanayu-
appreciates
Wilson and
ant
arising
the risks
from the
Indeed,
defendant's conduct.70
Kanayu-
principles.
Wilson and
rak do not mention these
eg.,
Schlinsog,
willful misconduct
is little more than word
See,
Allen C.
Jr., The Suicidal
Wrongdoer,
(citation
Culpable
Wrongfully
omitted).
Decedent:
play")
or
De
24 J.
ceased,
Marshall
L.Rev.
463, 467, 477
Valdez,
Hiibschman
v.
tive defense that could excuse cus dualistic in In general, nature.85 a person negligence todial is a cause of has no another from harm or *14 Moreover, harm. pedestrian- dang the dissent's to come to another's aid if is in he/she hypothetical driver recognize fails to that the er.86 82 duty by jailer owed a fundamentally differs duty from the owed a driver who has no But custodial situations are a well- anticipate reason to pedestrian that a will exception known no-duty to this rule. As the intentionally step out into traffic to achieve notes, Restatement who required "[OJne is death. Reasonable drivers need not fоresee by law to take ... custody of another pedestrians; jailers anticipate suicidal must under such deprive cireumstances as to prisoners attempt that some will suicide. opportunities other of his normal protec person special
tion" owes that
a
duty of care
Finally,
to treat
as
protect
to
from "unreasonable risks
him/her
87
complete
of harm."
commentary
The
a
bar to a claim
negli
to the Re
based on
gence would be counter to our usual manner
statement
duty
notes that
this
extends to
analyzing
liability.
tort
It
"arising
would amount
risks
out of the actor's own conduct."
public policy
to a
jailer
However,
determination that a
88
the Restatement
seems
simply
duty
no
owes
of reasonable
un
conduct,
care
to limit
this conduct
to
79. Dissent at
Page
85. See W.
al.,
Keeton et
Prosser and Keeton
(5th ed.1984).
§
on the Law
Torts
65, at 452
80. Dissent at 480.
("[Thhe
§
id.
56,
at 375
law has persistent-
ly
impose
stranger
refused to
on a
the moral
circumstances,
expert opined
apart
81. An
that
obligation
humanity
go
of common
to the aid
intoxication, causing
Kanayurak's
from
Lillian
being
danger....");
of another human
who is in
"(a)
"morbid state of mind" included:
confine-
(Second)
(1965)
§
Restatement
of Torts
314
ment, (b) humiliation,
(c) fear for her children
(''The fact that the actor realizes or should real-
(d)
isolation."
rather
than
also sufficient.93
therefore,
suicide-are
is
tent to commit
a custodian
Arguably,
acts.89
per
duty to
particular
under no
jailer's
here is whether
question
his own intentional
custody from
under
son
protect a
care to
of reasonable
barring some additional
acts of self-harm
encompass
harm
risks of
from unreasonable
"special cireumstances."
attempts.
reasonably foreseeable suicide
es
does,
inten
that the
that it
We conclude
recognize
jurisdictions
Almost all
in addi
prisoner's
needed
suicide should
tionality of a
are
"special cireumstances"
duty.
reaching
altogether
excuse
relationship
trigger
tion to a custodial
conclusion,
prisoner's suicide."90
origin of the
prevent a
we note the
jailer's duty to
duty.
also note
relationship-based
what constitutes
split
law
The case
is
an eviden-
determining without
difficulty of
majority
"special circumstances."
given
suicide was
tiary hearing whether
find
require a threshold
jurisdictions do not
intent, and the
incapacitation.91
exclusively
product of
illness or
ing
mental
determining
death whether
difficulty
after
prisoner's
if
have held
Most courts
once,
if thwarted
foreseeable,"
prisoner, even
a suicidal
"reasonably
ultimately
have "succeed
would
help
nevertheless
duty of care to
prisoner a
owes the
prisoner's
analyze
jail
While
prevent that suicide.92
think it better
ed." We
any, by looking to the issues
intoxication,
liability, if
illness,
impair
er's
or other
mental
causation,
duty,
allocation of
why
of breach
may be the reasons
ment
fault,
also note that
damages. We
should know
knows or
*15
("[The
duty
protect] extends also to
to
[such
of actions
as disrob-
89. See id.
coordinated
series
securing
ing, fashioning
the noose
persons,
a noose and
arising
acts of third
...
from the
risks
stationary object].
to a
negligent,
intentional,
innocent,
whether
be
they
Id.
arising
to risks
It extends also
or even criminal.
accident,
negligence of the
or from the
pure
from
State,
369,
{
...");
(stating
Figueroa
Haw.
604 P.2d
v.
61
plaintiff
id. erat.
himself .
of.
1198,
("The
(1979)
penal
person
duty
institu
duty
give
who
of
aid to
1203-04
owes no
to
custodian
friends).
"competent"
homes to exercise reasonable
hands of his
tions and detention
is in the
against
protection
to
suicide
care should extend
Beach,
reasonably
City
Long
60 Cal.
foreseeablе....
if such an event is
90. See Lucas v.
of
470,
(1976)("Ab
341, Cal.Rptr. 474
App.3d 131
of actual or construc
in the absence
Conversely,
behavior,
jailer
special
a
possible
circumstances
inmate's
suicidal
some
tive notice of the
sent
(citations
taking
duty
prevent
duty
prevent
latter from
to
to
a suicide."
is under no
there is no
Hardin,
York,
life.");
City
omitted));
Pretty
Top
City
70 N.Y.2d
v.
v.
New
own
Gordon
his
of
of
58,
311,
(1979) (noting
61
182 Mont.
1331,
N.E.2d
1332
445,
523 N.Y.S.2d
517
839,
"
("When
(1987)
prison
know or should
authorities
form the basis of
circumstances'
'[slpecial
involving jailer's
virtually every
prisoner
a
labili
tendencies or
has suicidal
decision
know that a
himself,
self-destruction.");
might physically
60
ty
prisoner's
prisoner
acts of
harm
for a
that a
duty
provide
Institutions
care
assure
and Correctional
reasonable
to
Am.Jur.2d Penal
arises to
(2000) (same).
occur.");
§
208
see
does not
also
that such harm
Pop
541,
City
Talladega,
543
582 So.2d
ham v.
of
See,
Rahway
Dep't,
eg., Vallejo
1991);
Police
292
(Ala.
v.
Steuben,
693
Sauders
v.
County
of
1135,
333,
(App.1996)
N.J.Super.
A.2d
1140
678
White,
16,
(Ind.1998);
Sudderth v.
621
20
N.E.2d
Zezulka,
33,
Hickey
prisoner
(Ky.App.1981);
v.
(rejecting
requirement
35
S.W.2d
106, 110,
(1992);
408,
duty
prison to have a
487 N.W.2d
123
"helplessly"
for
Mich.
intoxicated
439
harming
prevent
himself and hold-
from
Sandborg,
to
him
Murdock
v.
196-97;
N.W.2d
601
illness, prior
prisoner's
ing
that a
mental
755,
70,
N.H.
623 A.2d
757
Keene,
137
City of
601,
Harrell,
(1993);
trigger
City
N.M.
603
aitempts,
could all
Belen v.
93
or mere intoxication
Vallejo
duty).
(1979);
further not-
prison's
court
v. Preston
713
Moats
County
"helplessly"
requiring
prisoner
to be
ed that
S.E.2d
206 W.Va.
Comm'n,
(Second)
(1999);
required
of Torts
prison
Restatement
intoxicated before
cf.
(''The
(1965)
committing
defendant
is
any steps
prevent
him from
cmt. f
take
314A
any
or has
any
required
action until he knows
sense:
to take
suicide did not make
plaintiff
endangered
that the
reason to know
has
sure how
intoxication
[We are not
helpless
injured.").
or is ill or
jailer's
standard of conduct
relevance to
suicide....
in the context of a detainee's
Vallejo,
who is so
1140;
v.
eg.,
at a loss as to how
678 A.2d at
are
See,
Helmly
Bebber, N.C.App.
335 S.E.2d
profoundly
that he
considered
intoxicated
helpless
at risk for such
can be considered
legislature
recognized
jurisdictions
has
that an actor's in
Cases from other
cover the
preclude
spectrum
tentional
in discussing
conduct does not
the actor
the effect of an inten
tional suicide.
seeking
an allocation of fault
One
the best
injury
reasoned is
Steuben,
County
Sauders v.
allegedly
negligence
caused
which held
another
.94
that "the act of suicide cannot
constitute
contributory negligence or incurred risk in a
custodial suicide case."
apt
court also
say
prisoner's
This is not to
that the
ly discussed
allowing
the hazard that
such
mental
jail
state is irrelevant. Because the
claims
make the
the insurer of its
duty
steps
er's
is to take reasonable
under
prisoners'
safety.
explained
The court
prevent
the cireumstances
"the custodian
duty
pre
does not have a
suicide,
committing
prisoner's
men
particular
Rather,
vent a
(e.g.suicide).
act
capacity may
tal
determining
be critical
is to take
steps
reasonable
under
duty.
whether
has breached that
life, health,
cireumstances
appellate
As a
recog
North Carolina
court
safety of the detainee....
The custodian is
nized:
not an
against
insurer
harm."
In detеrmining
jail
prison
whether
...
Lake,
Myers
County
Indiana
also
authorities have
their
executed
of rea
succinctly discussed the effect of an intentional
keep
sonable care to
safe and
suic
ide.98
The Seventh Cireuit Court
harm,
free from
recognized
the courts have
Appeals,
predicting Indiana law before
factors,
that certain
prisoner's
such as the
decided,
Sauders was
held that intentionality
mental state-whether
he was sane or in
per
was not a
se defense to the tort of
sane, severely depressed, psychotic or evi
negligently failing
suicide.99
dencing
symptoms
other
of mental distur Myers provides
analysis
useful
of the reasons
physical
bance-or
condition-whether
{favoring rejection
of the
de
drunk,
so,
he was
and if
whether
he was
fense.
completely helpless
state-are
to be tak
Myers
sixteen-year-old
Steven
was a
boy
en into
consideration....
[The
courts
with
history
depression
and suicidal
have
determined
what would consti
*16
permanent
tendencies. He suffered
brain
tute
the reasonable care of the
damage from a failed suicide
while in
attempt
by
depends
demanded
law
on the cireum-
custody
county
at a
detention center.100 A
care,
given
stances of the
and have indicat
jury
negligently
concluded that the custodian
ed that
supervision
whether the amount of
precautions
failed to take
against suicide att
provided
adequate,
for the
was
empts.101
funding,
Due
lack
to
the custo
and whether
pris
the articles left with the
dian
only
part-time
employee
staffed
one
naturally
oner could
be assumed to be used
providing psychological services.102 Steven
suicide,
as
questions
instruments of
were
inadequate staffing
asserted that the
consti
the jury.[95]
to
by
be decided
tuted
failure to detect and curtail
Thus,
facts,
prisoner's
suicide risks.103 These
a
mental state is relevant
combined with
dispositive
but not
jailer's
of the issue of the
history
Steven's established
of suicidal ten
Hability.
dencies, supported the verdict.104
amending
94. See ch.
SLA
AS
at
id.
851.
09.17.900.
101. See id. at 848.
186;
Helmly,
95.
335 S.E.2d at
see
Jane
also
M.
Annotation,
Draper,
Liability
Civil
Prison or
102.
See id.
851.
Injury
Jail Authorities
or Death
for Self-Inflicted
Prisoner,
the
the volun-
suggests that
impossible. One
because
not be liable
negligent,
should
of his
actor the "author
tary
makes the
act
bringing
in
deliberately
had acted
plaintiff
injuries":
Indiana
It noted that
own
harm.105
his own
about
defenses,
however,
voluntary
by
in
Suicide,
act
negligence
is a
recognizes several
cause,
negli
contributory
consciously
to end his
chooses
intervening
person who
cluding
safety,
to exercise
person
of one's own
fails
disregard
life. When
reckless
own
gence,
safety,
had
risk,
of those
his own
ordinary
that none
care to ensure
but
and incurred
It reasoned:
cases."106
applied to suicide
the author of
been
as
regards
law
follow,
injuries.
It would seem
his own
duty
has
If the custodian
bar
therefore,
may justifiably
that a court
in
himself,
the fact
inmate from
victim.[110]
recovery by the suicide
a reason
harm himself is
tried to
mate
dutyA
than a defense....
liability rather
valid.
are
practical
concerns
partic
acting
prevent someone
Sauders
be insurers.
Jailers cannot
by
be defeated
logically cannot
way
ular
even
difficulty
preventing
Myers note
avoided.[107]
sought to be
very action
appreciate that dif
foreseeable suicides.
here is not
duty
conclu
we discuss
ficulty,
as the court's
but
reasoning, as well
This
considering
only
make
reasonable
majority
need
of courts
absolute.
Jailers
sion
it,108
rejected
intentionally
had
defense
protect prisoners from
efforts to
reasonably
foreseeab
holding.
self-harm that
inflicted
supported the court's
le.111
there is
suggested
Myers court
the various
difference between
meaningful
no
who
of commentators
The concerns
recovery. After
might bar
theories which
duty are best ad
impose this
would not
possible theories which
mentioning three
given
determining
sui
whether
dressed
cause,
dis
(intervening
reckless
apply
might
If it was
reasonably foreseeable.
cide was
safety,
incurred
one's own
regard of
not,
no
have breached
will
risk),
the same
that all three raise
it stated
it;
was,
prisoner's
conduct
if it
intentionality is a
question: whether
basic
deciding
mea
what
may be considered
disposed of the
then
The court
defense.
taken to dis
jailer should have
sures the
question
addressing this broader
issue
prisoner's conduct
charge
duty. A
its
"legal pigeonhole."1
choosinga
without
deciding
whether
be considered
also
cause of
jailer's breach
practical
have voiced
commentators
Some
Finally, a
should
prisoner.
harm to
juries to factor
allowing
concerns about
dam
claimant's
permitted to allocate the
*17
the suicide victim's
be
of
fault or voluntariness
if
usually does
way it
ages in the same
decision. One commenta-
into their
actions
to a loss.112
multiple legal causes contribute
contributory
negligence
argues
tor
Fin.
id. at 852-53.
v. Alaska Hous.
Corp.,
Guerrero
106.
Id.
852.
the
As amended
See AS 09.17.080.
112.
107.
Id. at 852-53.
damages in
requires apportionment
of
statute
involving
than one
fault of more
"all actions
states
that five of seven
The court concluded
108.
1997, AS
person."
After
amendment
intentionality
had re-
considering
as a defense
"acts or
"fault" to include
defines
09.17.900
(as
jected
See id.
that time
it at
negligent,
any measure
that are in
omissions
... of
the
intentional
toward
reckless,
or
person
Myers,
the instruction
summary
follows,
reviewed
Kanayurak
tort,2
s.116
recover
harm him cannot
judgment.117
fortiori,
recover for his
cannot
intent. Recov
having the same
own conduct
instruc
the
observe
alsoWe
tyрically permitted
is thus
ery for suicide
that could
a distinction
to draw
tions failed
act is not considered
only where
suicidal
was told
on remand.
relevant
intentional,
the defen
either because
to be
if Ru
the state liable
find
it could not
the suicidal indi
conduct left
dant's tortious
inten
a result of his
Joseph
as
dolph
"died
consequences of
unable to realize the
pre
vidual
would
That instruction
tional actions."
actions,
in him an
intentional
it created
liability
prisoner's
if a
or because
his
state
clude
cause of
was
gesture
impulse to commit suicide3
suicide
uncontrollable
not intend that
death,
though he did
princi
even
purposes I refer to
For shorthand
would not
the dissent
Even
death result.
recovery
intended self-harm
ple
for
that bars
in that cireum-
excuse
state
completely
"intentionality rule."
as the
pedestrian-driver
dissent's
stance.
Slope Borough,4
Kanayuwrak v. North
turn on
example, seems to
for
hypothetical,
pris
jail
by an intoxicated
involving a
suicide
achieving death.
intention of
pedestrian's
involy-
Kotzebue,5
oner,
City
to causa
and Wilson v.
could be relevant
The distinction
perhaps
badly
other
issues.
tion,
who was
damages,
ing an intoxicated
the intentional conduct
whether
example,
For
cell,
recog
setting fire to his
we
after
burned
to cause one's
by
intention
accompanied
an
exception
further
nized a
abili
may
on the custodian's
bear
own death
Drawing on
context.
in the custodial
rule
the dece
Dezgort
and on
ty
the suicide
v. Vil
language from such cases as
expectancy.
lifе
dent's
Hinsdale,6
intention
we held that the
lage of
apply
a custodial
ality rule would
IV. CONCLUSION
incapable
exer
prisoner "was
setting if the
reasons,
we REVERSE
For
these
ill
his mental
cising
care
virtue of
due
for
7
and REMAND
for the state
judgment
addiction,
ness, drug
or intoxication."
proceedings.
further
given by the trial court
The instructions
Justice,
MATTHEWS,
whom
with
Chief
expressed
exception
faithfully
this case
Justice,
CARPENETI,
joins, dissenting.
by Kanay-
intentionality rule established
majority opin-
today's
But
and Wilson.
ural
recovery
can be no tort
generally
There
away with the
changes the law.
It does
ion
person who consents
Since
suicide.1
See,
Oper
Jersey
eg.,
v. New
Transit Rail
Halko
P.2d at 631-32.
Wilson, 627
(S.D.N.Y.
135,
677
142
ations,
Inc.,
F.Supp.
4709
incapacity-based exception
pacity,
to the intentional-
is an affirmative defense that must be
proven by
plea
ity rule and instead
the defendant.12
the rule
Thus
is a
declares
apply in
setting.
itself does not
a custodial
in
defenses,
avoidance like other affirmative
signify
and does not
underlying duty
that the
depart
precedent
doWe
from the
set
Further,
does not exist.
practical
as a
mat
except
"clearly
our case law
when
con-
ter,
underlying protective
duty cannot be
originally
vinceed" that
"rule was
erroneous
freely ignored by prison employees, for the
longer
changed
or is no
sound because of
risk that
the defense cannot be
conditions.8
Those
established
conditions are not met
here, my opinion.
present.
in
will often
Finally,
be
the custodial
incapacity exception recognizes that the rela
incapacity-based exception
was not er-
tionship
prisoner
between a
and a
im
adopted.
roncous when
It was a reflection of
care,
poses
special duty
of
as the
can
jurisdictions
in
similarly
cases
other
responsible
incapaci
for the suicide of an
sought
applica
to limit the sometimes harsh
prisoner
tated
if
responsi
even
he is not also
intentionality
applied
tion of the
rule when
bringing
for
incapacity
ble
about the
itself.13
suicides.9 These cases contrasted
with more traditional cases which held that
intentionality
rule is both sound and
intentionality
law,
was a bar as a matter of
deeply
pedestrian
rooted
our law.14 If a
even when the
was intoxicated.10
intending
steps
kill
path
himself
into the
of
by Kanayurak
And the law established
a car
exceeding
speed
which is
limit can
Wilson
is
was and
consistent with the analo
representatives
recover
from the car's
gous
although
plaintiff's
doctrine that
con
driver?
in my opinion
The answer
should be
injury
an
recovery,
sent to
will bar
the con
"no,"
though
even
the driver had a
sent will
if
product
be ineffective
it is the
pedestrians,
care to
duty by
violated that
infirmity
intoxication or other mental
speeding,
may
and his conduct
have been a
incapacitates
plaintiff
giving
effective
pedestrian
cause of the death.15 Since the
con sent.11
kill
intended to
himself he should bear the
Likewise,
inconsistency
there is no
be-
responsibility
whole
though
for it even
rule,
tween the
when consid-
negligence
of another
also have had a
ineapacity-based exception
ered with the
causal role.
rule,
recognition
jailer's duty
of a
exercise
prisoners
reasonable care to
prisoners
I do not
believe
should be
consent,
from harming
regarded
themselves. Like
in-
having
capac
law as
lost the
tort
tentionality,
including
ity
the absence of an
intentionally
inca-
to act
concerning self-harm
Fremgen,
8. State v.
914 P.2d 1244, 1245
14. See William
Prosser,
L.
Handbook
the Law
18,
(4th
1971) ("It
§
Torts
at 101
ed.
is a
principle
fundamental
of the common law that
See,
Dеzort,
474;
eg.,
City
9.
342 N.E.2d at
injuria-to
willing,
volenti non
one who is
no
fit
Belen,
"fault" changed condi might be statute
tionment But this case accrued relevance.18
tion of apply explicitly does not the statute 1996 and 7, 1997.19 August accruing before
to cases winnowing principle Foreseeability is not as- aas unreasonable includes breach warranty, constituting sumption an enforce- with the inca- of risk not good for substitute consent, product product exception. express that is the misuse of pacity A suicide able liable, would be the defendant otherwise which and thus barred from deliberation, unimpaired (or any recovery, injury number be foreseeable or tort failure to avoid an and unreasonable reasons, prior attempis or as specific such Legal requirements mitigate damages. prisoner. [ault of the statements apply as the basis relation both causal contributory liability fault. State, 17. See Kaatz ch. SLA provides: 09.17 900 As AS amended ("The Schwartz, note at 128 supra deeply injuria is so volenti non notion of chapter, acts or "fault" includes fit In this it would be in American law that entrenched negligent, measure that are omissions interpret compar- unlikely would that a court reckless, toward or intentional others, abolish the consent negligence statute to subject ative or that property the actor or defense."). liability. The term also tort person to strict