Loeb v. Rasmussen

saving surgery? Was it rea- the life have attorney person’s contin- LOEB, sonable for the Joyce Representative as Personal apparently culpa- most pursue ue to those Bouffioux, of the Estate of Teresa having hospi- ble, reviewed even after Appellant Cross-Appellee, incomplete argu- tal Do the records? given per- misleading answers ably and L & L Invest Leo RASMUSSEN the reasonableness physician son’s affect ments, general partnership, a d/b/a inquiry? of the Boxhoy, Appellees and Cushman Cross- minds could I conclude that reasonable Appellants. how would differ on a reasonable S-3450, Nos. S-3464. A

respond in the circumstances described. question presented whether Peder- jury Supreme Court of Alaska. person, sen, a should have reasonable Dec. his all the elements of cause of discovered providers against his care medical sued years more than two before he them.

Assuming court’s conclusion that notice put inquiry upon on

Pedersen legs paralyzed,

learning that his a

discovery immediately following the made accident,

surgery that resulted from the rule applied

under the formulation of the Borg-Wamer, court in Pedersen duty

should have been investi-

gate possible injury. all causes include the conduct of his obviously

would providers. Only care one his

medical allegedly make

physicians failed to a full

disclosure Pedersen and his wife. It is physician’s

difficult to conclude that

alleged fully failure to disclose matters to had on rea-

them would have effect medical inquiry,

sonable since the records

themselves, Pedersen, always available physician had An

disclosed what the not.

inquiry based on those records would have surgery

led as the cause of the discovery

paralysis. This would should inquiry physician. Re- focused

have alleged

liance on failure disclose at point have become unreasonable

would years suit was

earlier than two before care provid-

filed. As to the other medical

ers, legally no sufficient cause has been postpone accrual of the statute

shown

beyond inquiry notice date court accept Thus if we the court’s

establishes. framework,

analytical Pedersen should

lose. Walther, Clark,

Dale J. & Flani- Walther gan, Anchorage, appellant/cross-appel- lee. West, Robertson, Monagle

Susan M. Eastaugh, Anchorage, appellees/cross- appellants. C.J., RABINOWITZ,

Before BURKE, MATTHEWS, COMPTON and MOORE, JJ.

OPINION BURKE, Justice. case, plaintiff damage in a challenges the denial of trial court’s compara-

its motion bar the defense cross-ap- negligence. The defendant peals the court’s denial of its motion for judgment summary alleged based on plaintiff’s misconduct” of dece- “willful parties appeal pertain- dent. Both issues ing attorney’s trial court’s award fees.

I eluded and willful part of misconduct on the Bouffioux. Bouffioux, June Teresa On Be- accident. injured a one-car trial, sought a Prior the estate accident, another Bouffioux and fore the ruling superior the from the court4 that purchased liquor the Cushman from of was un defense mi- Boxboy, a in Fairbanks. Neither store Boxboy, to “as a of law.” available matter by Boxboy personnel to nor was asked denied, The estate’s motion was age. proof her furnish of Boxboy permitted go to forward and was accident, Following Bouffioux was with the defense. hospital, transported a where a blood to Boxboy summary judgment, moved Test indicated sample was taken. results pur- arguing that Bouffioux’s unlawful Bouffioux’s blood alcohol level was that alcohol, her consumption and of and chase 0.15, charged later with driv- and she was intoxicated, subsequent driving act of while ing Approximately while intoxicated. one type “the of intentional misconduct were accident, after commit-

year Bouffioux recovery against which bars another [for ted suicide. Box- negligence].” The trial court denied motion, boy’s effectively ruling that Bouf- February On Bouffioux’s not, law, a conduct did as matter of fioux’s damage against L L estate filed a recovery. her Rasmussen, bar doing Investments & business Boxboy (Boxboy). The com as Cushman Boxboy negli- jury guilty found of plaint alleged that the sale of to furnishing alcohol gence, for to Bouffioux unlawful, 04.16.-0 Bouffioux was under AS asking proof first her for that she without 04.21.050,2 it was AS because age. of Such was was lawful requiring to made a minor without first by jury proximate to be also found age. proof buyer’s of the The estate asked injuries, cause of Bouffioux’s but not damages, for an of for both Bouf- award jury of her death suicide. The cause and her ultimate death.3 injuries fioux’s Bouffioux’s were concluded that $144,593.09. amount, $69,- Boxboy alleging complaint, worth Of answered in- ex- These 593.09 were for Bouffioux’s medical several affirmative defenses. person age provides part: years or 1. AS indicates that the of 04.16.051 (a) olderf.] person may A an alcoholic furnish arising of We treat the estate's cause action as beverage person age of to a under the under AS 04.21.020 since common law claims years. recognized. longer a licensee are no 2. requires liquor AS licensees and 04.21.050 Investments, Inc., Carr L.J. Williford proof procure age employees of a their to 238 & n. 10 person entering or at- a establishment beverages tempting purchase alcoholic when- compa sought estate to bar the defense of 4.The employee “questions ever the licensee or or has law, negligence, through a as a matter of rative question person] reason to whether has [that of "motion to establish the law the case.” years." age attained the of 21 applies generally to a term "law of the case” appellate makes a situation which an court provides part: AS 04.21.020 law, regarding question a of determination person beverages provides A who alcoholic governs subsequent pro which determination civilly person another not be held liable ceedings generally Step in the same action. See injuries resulting from the intoxication of Gavrilovich, (Alaska anov v. person provides person unless the bar, 1979). In was not the case estate beverages holds a license autho- alcoholic seeking appel 04.11.220, enforce determination rized agent AS or is an under 04.11.080— remand; seeking, in late court after a stead, employee or of such a licensee and legal (1) in advance of trial the provided determine beverages the alcoholic are jury. presented The estate’s theories to be person years in viola- 04.16.051, licensee, requesting precluded be agent motion tion AS unless the negli arguing good from Bouffioux's employee secures faith was, thus, statement, gence signed' more akin a motion for identifica- card, judgment. meeting partial summary R.Civ.P. the re- See Alaska tion or driver's license 04.21.050(a) (b), quirements of AS 04.16.051, $75,000 general for her violation of penses and AS 04.21.050 defend, compared part, the licensee damages.5 Finally, jury is entitled to the basis of Boxboy, negli- Bouffioux’s that of the minor’s finding gence illegal purchase.6 the fault was in making Bouf- 90% fioux’s; damage light prior law, award to her estate case what we believe accordingly. public Alaska, was reduced policy be the we hold that a licensee in such circumstances is not verdict, Following jury’s return of entitled partial to this defense. motions, seek- estate filed alternative (1) ing: judgment regard to the without Urie, (Alas- In Nazareno v. 638 P.2d 671 jury’s comparative negli- determination 1981), ka we held that violation AS 04.- gence, of the court’s reconsideration 15.020(a)7 se, per rendering was rulings subject comparative negli- on the liquor civilly a vendor liable when the sale (4) gence, (3) trial, judg- a new relief from of alcohol was factor in a substantial caus- ment, in favor judgment or of the estate ing injury. specifically Nazareno held that notwithstanding verdict. jury’s These party a an injured by third intoxicated cus- motions denied. were damages tomer neg- could from the recover parties Both for their attorneys’ ligent asked liquor Subsequently, in vendor. fees. The trial court ruled that the estate Farley Morris v. 661 P.2d 167 Enterprises, “prevailing party” (Alaska was the and awarded 1983), we held that vendor was fees of the based the amount reduced regardless liable of whether the suit was award, damage using the fee schedule set brought by party an innocent third or the forth in Alaska Civil Procedure Rule of 82. intoxicated consumer. appeals

These followed. Morris, a alcohol licensee sold to Ran- Hanson, dy age 17. Hanson shared the II purchased compan- he had alcohol appeal Each of the now on issues ions, one of whom was driver of the Thus, pure question involves a of law. they travelling. automobile in which issues, reviewing these we are free to sub Thereafter, Id. at 168. an accident oc- judgment independent stitute our for that curred in which Hanson another minor Line, of the trial court. Alaska Inc. Foss were killed. of the parents Id. The de- Services, Inc., Northland P.2d ceased minors filed an action (Alaska 1986). duty adopt “Our is to liquor wrongful licensee for the death of persuasive the rule of most law that is upon their children the licensee’s vio- based light precedent, policy.” reason and 04.15.020(a). The lation of AS licensee ar- Ha, (Alas Guin v. 591 P.2d 1284 n. 6 gued of the complicity decedents 1979). ka contributing of the to the intoxication driv- er, statute, by which was also forbidden III the action. at 170-71. We held barred preclude Comparative Negligence “complicity” A. that such did licensee. minor’s action Id. at The first issue that we address is conclusion, In reaching we stat- whether, brought by in a tort action a ed: or her estate for caused 04.15.020(a) was, purchased policy the minor’s use unlaw AS [The] ] [of license, fully part, of a from the effects from the holder Decision, 04.15.020(a) provided: In its Memorandum trial court 7.AS component correctly, stated each award persons. Sale to minors or It is intoxicated slightly but amount of the misstated the total give, unlawful to barter or sell intoxicat- award. wine, ing liquors, including to a beer years under the of 19 to an explicitly rulings question 6. We on this reserved person.... intoxicated Farley Enterprises, in Morris v. 1980). (Repealed n. 7 impediment as- an to an action upon an transaction as It was based of alcohol. in- relatively minors are a licensee who violates AS sumption that 04.15.020(a), legisla- from embodying themselves same capable preventing dangerous drug. It would abusing and, design, policy protecting on which class, run counter to i.e., age of those under the same as a adopting statute have acted in inability protect them- from their own standard, poli- thus effects alcohol. selves itself, to hold that cy of the statute argues, adoption that our of com- maintaining ac- an minor is barred from State, parative negligence Kaatz v. illegal liquor’s in the by his role tion own (Alaska 1975), undermines the the seller acquisition. As between for the rule that a violator rationale minor, is the is the seller who plead “exceptional may not statute” responsible party in the transaction. dis- contributory fault.8 We plaintiff’s also fact that the minor’s conduct was agree. change this misdemeanor ... does not doc- legislature has now codified the prohibiting relationship. statute [The 09.- comparative negligence. trine of obtaining minor from alcohol] provides: 17.060 acquiring passed prevent to minors from those intoxicating liquor, protect not to fault[,] seeking In an on to action based minors civil liabil- who sell damages injury recover for or death ity. property, contributory or harm to fault to the claimant dimin- chargeable Id. proportionally the amount awarded ishes relied, in In and Morris we Nazareno damages compensatory injury for the States, 355 on part, Vance v. United fault, attributable to the claimant’s but 1973). (D.Alaska In the F.Supp. 756 Vance recovery. does not bar 04.15.020(a)was district court held that AS designed protect a exceptional (em- 09.17.060; an statute Ch. SLA § therefore, court, special class. The district added). phasis statutory provision negli- contributory concluded that a minor’s past deci- not at all inconsistent with our gence not bar a tort claim should sions, holding prohibiting that the laws the licensee, “place[s] the the because statute obviously sale of alcohol to responsibility resulting harm the entire place are persons intoxicated intended violator, virtually impossi- it is upon the subsequent responsibility for the entire for the to be violated without ble statute cases, like on the Our harm violator. contributory negligence part on of the statute, essentially plain- say (empha- plaintiff-consumer.” Id. at 759-60 contributory fault is not tiff/consumer’s added). sis in these cir- chargeable to the claimant cumstances, in an action the viola- then, unwilling general, we have been Thus, legislature’s adoption of tor. contributory negli- to consider a minor’s change comparative negligence did gence complicity illegal plaintiff consequences Boxboy approach of have us even would follow Prosser, Sagadin (quoting Ripper, Id at 690 his own fault.” taken Cal.App.3d California Torts, (1985). Compara- Topics the Law Cal.Rptr. Selected of (1953)). Negligence, underlying prior judicial at 8-9 The There court noted to the policy reasoned, "special exception, the adoption comparative negligence, the con- class" court assumption plaintiff tributory negligence re- based on the barred contributory plaintiffs exceptions, including negligence covery would bar the with limited thereby thwarting "special exception. Cal.Rptr. entirely, Id. 221 action class” Sagadin, Cal.Rptr. exception at 691-92. “special The eliminat- of the statute. However, 690-93. class” underlying contributory negligence where the the court found that these ed a negligence defense adoption premised upon mitigated a defen- concerns with the action was doctrine, and, comparative negligence con- there- dant’s of a statute which was the fore, violation longer "special exception was no being place "to the entire class” strued as intended defendant, necessary. responsibility protect on the and to further, well rule.9 Boxboy exploit established allow having liability plaintiff reduced While we are aware that there is a con- because Bouffioux failed to exercise the split authority in siderable this area of degree same of care for her safety own law,10 holding today we believe that our reasonably expected of one more able comports existing Alaska best law risks, assess the purchased when she public policy. sound product.13 used the Boxboy’s defendant’s legislature passed many has laws argument particularly unpersuasive designed perni- minors from the light of the fact that it could have avoided laws, par- cious effects of alcohol.11 Such all liability merely by securing, good ticularly making those it unlawful to sell faith, proof that Bouffioux was of lawful minor, society’s to a reflect belief selling liquor.14 before her competent children are not to assess reasons, For the above we hold that a meaningful way the risks involved licensee who violates AS 04.21.050 in the use alcohol.12 is not was able exploit entitled to assert competence, this lack of when it fault of minor/consumer, liquor unlawfully sold to Bouffioux. How- in an action for dam- ever, legitimate ages we can think of no resulting reason from the unlawful sale of 9. following 1989) (tavern statement is found in 57B Am. owner assert Jur.2d 1173: § as a defense to rule, arising serving already general patron out of subsequent As a intoxicated enactment injured driving). who is then statute will not pre-existing safety pro- affect a statute that E.g. (restricting AS 04.11.410 location of li- contributory negligence vides that is not a quor schools); Ap- establishment near see In re statutory defense to a violation. A violation (D.Alaska plication Wakefield, designed 10 Alaska 599 of a statute a class of of 1945) (discussing legislative persons including plaintiff, pass- may intent of also be 04.11.410); ing precluding (prohib- AS see construed as also AS 04.16.049 defense of com- parative negligence. iting entering premises minors from of a li- Woods, establishment). Comparative See also H. Fault censed § 10.1 (2d Supp.1990). ed. 1987 & Beukers, Whitney-Fidalgo Seafoods, Inc. v. Cf. 10. Cases refusing apply comparative fault (Alaska 1976) (laws prohibiting P.2d 554 250 principles shop to dram actions include: Booth employment occupations danger- of children in Booze, Inc., Abbey v. Road 532 So.2d Beef premised, part, ous life and limb are in 1288, (error (Fla.App.1988) 1290 to reduce ver competent the notion that children are not plaintiffs comparative negli dict on account of personal injury exploita- assess the risks of and action); gence shop Slager in dram v. HWA performance tion attendant in of hazardous 349, (Iowa 1989) Corp., 435 N.W.2d 351-54 activities); Caterpillar see also Tractor Co. v. (comparative fault not a defense to action Beck, 871, (Alaska 1979) (general 891 act); brought shop under dram Chausse v. policy liability responsi- of strict demands that 1199, Corp., (La.App. Southland 400 So.2d 1202 bility placing products for defective on the mar- 1981) (minor plaintiff recovery cannot have re position ket should not be shifted to those in no upon contributory negligence duced based un danger). to assess the act). shop Hydra-Mac, der dram Keenan v. Cf. Inc., (Minn.App.1988), 422 N.W.2d 744-45 13. Because Bouffioux was a minor, deemed grounds, reversed on other 434 N.W.2d 463 society incompetent meaningful to assess in a (Minn. 1989) (Child Labor Standards Act is ex alcohol, way risks associated with the use of ceptional may statute and violators not assert readily distinguishable case is from Bachner v. plaintiffs defense). negligence as a Rich, (Alaska 1976), where we applying principles Cases of fault allowed the defendant to raise the defense of shop to dram actions include: Del E. Webb comparative negligence plaintiffs in an adult Arizona, Corp. Superior v. Court 151 Ariz. damage action based on the defendant’s viola (1986) (affirmative 726 P.2d 580 defenses of general safety tion of the code. contributory negligence assumption of risk shop brought could be asserted in dram actions 14. provides, pertinent part, that comparative negligence after effective statute); 04.21.020 date of taken, (social precautions Sagadin, Cal.Rptr. when such are "[a] at 675 may provides beverages host who alcoholic to another assert minor’s brought by person may civilly as a defense in action minor for not be held liable for furnishing resulting person.” host’s statute); him alcohol in violation of a from the intoxication of that (Colo. Lyons Nasby, supra. 770 P.2d 1250 note See il- conduct in Characterizing a minor’s liquor.15

intoxicating driving consuming alcohol and then legally negligence, complicity, an automobile as Misconduct B. Intentional superseding or willful misconduct is cause Having that a licensee held play. For the rea- little more than word negli minor’s may assert a not section, preceding we given sons it liability, licensee’s gence to reduce the Boxboy’s affirm the trial court’s denial reject Boxboy’s should that we follows summary judgment. for motion issue of Bouffioux’s cross-appeal on the Furthermore, we be misconduct.16 willful Attorney’s C. Fees Farley con holding in Morris v. lieve our that the estate The trial court determined trols this issue. party, prevailing because it suc- was liability cessfully Boxboy’s established con- Morris, “wrong held cerning personal injury claim. providing ful of ... Hanson conduct [the $4,693.93 court awarded the estate becoming intoxi the means with driver] fees, according attorney’s calculated superseding not did amount cated 82.17 Alaska Civil Rule therefore did of law and cause as matter operate not to relieve [the defendant] appeals estate the amount of its Morris, P.2d at 170. We liability.” fees, arguing it is attorney’s award for “intervening causes further that because, concluded attorney’s fees entitled actual scope lie foreseea which within apart litiga- from the excessive cost risk, ble or have a reasonable connection tion, public policy “it is the interest of re it[,] superseding causes which are attorney’s to be public interest fees liability.” tortfeasor from lieve the initial prevailing parties actions awarded (noting position, Prosser’s cit brought Professor upon and based where claims are approval Sharp ed v. Fairbanks ‘exceptional’ statutes af- violation n. Borough, 569 P.2d fording protection to minors.” North Star (Alaska 1977)). It within the cross-appeals, contending well estate scope prevailing that, risk party of foreseeable that a not the even automobile, was, purchases may inappropriately drive an if trial court alcohol attorney's fees Civil Rule an alcohol-related accident awarded 82. result. pursuant multiple brought suit to California 15. this case does not involve Because defendants, sections 25602.1 we need not decide how the recent Business Professions Code 25658, create a cause of action affects this issue. See AS 09.- which Tort Reform Act provides 17.086(a) "judgment against (stating alcohol to an [shall that be en- licensee prohibit obviously party minor and each liable on basis of intoxicated tered] 21, anyone liability party’s of alcohol to several in accordance with sale 5, 1989). fault”) (effective percentage respectively. that the The court held minor’s March voluntarily driving might complicate Multiple case "willful misconduct" defendants recovery. injured brings party barred Id. 244 third while intoxicated his when an licensee, 72-75; Cal.Rptr. see also Trenier v. both minor and the California 44, Cal.App.3d Cal. Corp., Dev. 105 164 or more than one licensee has Inv. & when (1980). Rptr. unlawfully provided liquor. the minor with 156 Sonderleiter, E.g., v. 420 N.W.2d 821 Schreier (Iowa 1988). party We reserve for future considera- altogether not clear which was to 17.It multiple related to defendants. attorney’s Judge Hodge’s tion all issues fees. be awarded its Decision identifies estate Memorandum contention, Boxboy party, judgment support prevailing but states relies on In of its 849, Corp., Cal.App.3d L & L "IT IS ... ORDERED that defendant v. 198 Coudriet Southland Investments, decision), (1988) Cal.Rptr. (unpublished Cushman 69 Inc. 244 d/b/a 5, 1988). Coudriet, attorney’s (May Rule 82 fees denied In a 7- awarded Civil review $4,693.93 plaintiff Estate of Teresa employee negligently liquor to ... 11 sold an obvi- parties’ appeal proceeded positions on ously Bouffioux.” The intoxicated minor. The minor cross-appeal, are that the estate the alcohol and further increased consume thereafter, prevailing party Shortly that it was award- the minor was the intoxication. attorney’s single-motorcycle injured ed Civil Rule fees. in a accident. 82 party may ‘prevailing par

“A be the below, had presented been the estate did ty’ if regard is successful with to the satisfy “public [it] our stated interest” liti- ” ‘main issue the action.’ Alaska Placer gant criteria.18 Lee, 54, (Alaska 1976) v.Co. 553 P.2d Thus, we affirm the trial court’s award (quoting Cooper Carlson, v. 511 P.2d attorney’s fees according to Civil Rule (Alaska 1973)). The trial court’s de 82. award, The amount of the fee how- party termination that a prevailing is the ever, recalculated, must be as it was en- party will reversed if only he the court tered on a verdict which was improperly Moreover, abused its discretion. we reduced because of compara- Bouffioux’s will not reverse an attorney’s award of fees negligence. unless trial “the court has abused its dis judgment superior court is cretion to the extent the award is ‘mani ” part REVERSED and AFFIRMED in festly unreasonable.’ Luedtke v. Nabors part. The case is REMANDED to the su- Inc., Alaska Drilling, 768 P.2d perior entry court for of an judg- amended ment not opinion. inconsistent with this

Here, we conclude that the trial court did not abuse its discretion in deter MOORE, J., dissenting, (MATTHEWS, mining that the estate prevailing was the J., joins part opinion). one of this party. In establishing Boxboy’s liability Bouffioux’s based on its viola I. 04.16.051, tion of AS 04.21.050 and AS estate regard was successful with nothing Because there is in either the main issue in the action. generally See language history of AS 04.16.051and AS Co., Alaska Placer 553 P.2d at 63. evincing legislative 04.21.050 any intent should, licensees under all cir- Boxboy’s cross-appeal, On cumstances, bear full responsibility for all conclude that the trial court acted properly damages resulting from the licensee’s vio- deciding to calculate the attorney’s fee acts, lation of I agree those cannot according award with the to Civil Rule 82. The majority’s argument decision in estate’s section III. A. attorney’s actual State, (1) (Alaska fees is Kaatz v. without merit for P.2d 1037 two reasons: 1975), the estate did not assert this court abolished the contributory was a “public litigant interest” proceeding in the rule in instituting favor of and, therefore, equitable below comparative negligence estate not more present appeal, the issue on principle Zeman Alaska. We then stated that Luf Airlines, thansa German 699 P.2d the new rule would (Alaska 1985), even if “apply the issue case in which the trial com- Resources, (Alas See Southeast Alaska Conservation Council v. Natural State, 544, 1986). 665 553 assuming, arguendo, ka Even that the determining particular below, criteria in whether a estate did raise the issue the estate does public lawsuit involves the interest are: satisfy following the above criteria for the First, simple negligence reasons. the case was a (1) designed strong Is the case to effectuate alleged an tortfeasor. There is public policies? no (2) indication that the estate filed suit because plaintiff If the succeeds will numerous they believed there was a constitutional or statu people receive benefits from the lawsuit? tory policy violated. Southeast only Alaska Conser private party expect- Can have been Council, Second, only vation bring 665 P.2d at 554. ed to (4) the suit? similarly the estate and other purported public situated members Would the interest liti- special bringing gant of a class suit under AS 04.21.- have sufficient economic incentive to file Third, 020 only and AS 04.16.051 stood to benefit. suit even if the action involved narrow lacking general implement proceedings importance? the state can criminal issues clerk, (quoting the Id. at 553 Resche, Kenai individual and can further Lumber Co. v. Le- fines, 215, closures, (Alaska 1982)). 646 P.2d order store 222-23 "A other criminal prevailing public penalties against plaintiff normally offending pursuant interest is licensees to Fourth, action, attorney’s bringing by entitled to full reasonable fees." 04.16.180. the 358, (Alas Thompson, gain Hunsicker v. 359 the estate to stood hundreds of thousands 1986); State, Dep’t ka see also Alaska Survival v. of dollars.

922 bring an action a defendant who the Kaatz. Id. after date of menees” However, added). despite plaintiffs sec- the that statute (emphasis 1050 violated majority opinion, may of its the III. A. conduct which have contributed tion own developed un- exception clings special to a the defendant’s violation. When the negligence rule contributory der the former negligence principle away did comparative particular harshness of that mitigate the all-or-nothing quality of the harsh with this state abolished principle. When rule, however, particular need former exception special need for principle, the exception special this was cre- for which vanished; not be it therefore should also disappeared. also ated reason, respect- I today. For this applied beyond excep an dispute It seems fully dissent. purpose its is validity loses its once tion Kaatz, quoted Yellow Cab Li v. This has been es approach exhausted. 858, Cal.Rptr. 532 Co., 13 Cal.3d by in the case of poused Saga California (1975), in recognizing P.2d 1226 Cal.App.3d Ripper, v. din yielded negligence often contributory rule There, (1985). Cal.Rptr. 675 court unjustified results due inequitable and correctly appeals reasoned that P.2d at “all-or-nothing” nature. why compelling there is no reason Indeed, response to this it was in exception ought the rule survive specific special excep problem that certain abrogated. the rule has been when itself rule “exceptional such as the statute” tions jurispru- As enshrined in a maxim of clear chance” and the doctrine “last dence, for a rule the reason ceas- ‘[w]hen 175 Cal. Sagadin Ripper, arose. See es, corollary A so should the rule itself.’ (1985). Cal.Rptr. App.3d falls, rule to that maxim that when the decision, however, remedied The Kaatz exceptions. so should its by specific of the former rule weaknesses (citation omitted). Cal.Rptr. Id. at 692 principle adopting pure principle’s “allocation of negligence. Therefore, that, held Sagadin court approaches reality more proportionate fault rule, repre victory total closely than the loss or causing her plaintiff’s fault his or harm contributory sented by the fact finder should be considered P.2d at This court then rule.” 540 though have even defendant vio- acknowledged judicially-cre that certain designed protect a statute lated developed under the contrib ated doctrines inadvertence, plaintiff from or her own longer use utory negligence rule no legislature explicitly unless the has stated along ful and should be abolished contrary. at 691-92. to the chance” rule former rule. “last clear approach, finder the fact Under will abrogated specifically doctrine one such give regard to the fact continue due stated, “[wjithout the con Kaatz. We designed the defendant violated a statute tributory negligence there no need rule [is] plaintiff. In addition con- palliative clear for the doctrine of last offense, sidering this the fact prin give To continued life to that chance. be consider finder should allowed to ciple very defeat would plaintiff's resulting own to the contribution appor rule—the manner, In this harm. who certain- damages according de tionment perils ly are or should be aware of the gree of mutual fault.” Id. at 1050. drinking driving, negligently and or who “exceptional by The statute” rule used operate impaired, may a vehicle while be explain holding today majority to is in pro- held accountable for their conduct clearly another doctrine whose causing in portion degree to their of fault with the the former vanished abolition of harm. their contributory negligence rule. Under scheme, “exceptional justification I see no for a rule which principle statute” plaintiffs completely capable served to ensure that within the insulates minors from protected responsibility consequences class of a certain statute could of their

923 since especially injured alcohol is involved. the case of the merely actions because compelling far more than such worker is that of Legislature did not intend Alaska Employees working the minor. in unsafe result, licen- a nor did intend that are conditions faced with difficult liability consequences sees bear for all full accepting either choice of certain risks or flowing 04.16.- from their violations of AS Minors, losing jobs. their the other 051 and AS 04.21.050. hand, simply can choose to abide the law purchasing and refrain from alcohol. II. held jurisdictions Other have routinely applied comparative We have comparative negligence can system effec- negligence principles to after actions tively a achieve balance between li- Indeed, apply princi we Kaatz. even such duty censees’ not to serve minors and mi- ples liability pur cases strict where the responsibility nors’ individual harm pose similarly is the law to shift from resulting their contribution to a licen- away injured persons burden of from loss See, e.g., see’s violation of the law. Lyons pro relatively incapable who are deemed 1250, (Colo.1989) 770 Nasby, v. P.2d 1259 tecting See v. themselves. Butaud Subur (to prohibit defendant tavern owner from Inc., Goods, Sporting ban Marine 555 asserting comparative de- 42, (Alaska 1976) (“The 46 defendant fense runs counter to the traditional tort strictly is for the harm liable caused principle that there be on the fault defen- product, except his defective part dant’s and that this fault contribute to pro damages award of shall be reduced harm); plaintiff’s Sagadin Ripper, v. 175 portion plaintiff’s contribution (1985).1 Cal.App.3d Cal.Rptr. 675 injury.”). majority relies v. on Vance United case, pre-Kaatz In a con we allowed the States, (D.Alaska 1973), F.Supp. tributory negligence defense a de where Enters., Farley and Morris v. 661 P.2d 167 provisions of fendant-employer violated (Alaska 1983), proposition general for the Safety designed pro state Code General unwilling have that we been consider a workers, injuring plaintiff- tect thus contributory negligence complic- minor’s Rich, employee. Bachner v. ity illegal liquor an transaction as Bachner, rejected impediment against to the minor’s action arguments accepts the same that the court who AS 04.16.051. licensee violated today: that the defendant was better able agree, undoubtedly true.2 I do not harm; prevent it was better general proposition also losses; able to and to bear risks distribute grants for the immunity to minors absolute legislative that the intent behind consequences of their willful conduct Code would be frustrated if the contrib procuring consuming alco- unlawfully utory negligence hol, defense were allowed. engaging in conduct such as then impossible car, driving knowing disregard 438-39. It to reconcile majority’s today, drinking driving. finding Bachner with the risks associated with Many jurisdictions neg comparative negligence may allow the be considered ligence host); of a to be actions jury Congini considered in action social social who Co., hosts serve alcohol to Valve 470 A.2d v. Portersville 504 Pa. See, e.g., Longstreth in violation v. of statutes. (1983) (because they may held liable be Gensel, 423 Mich. 377 N.W.2d 804 presumptive certain adults for offenses and are (minor’s against social host violated ly negligence, capable of minors’ subject statute is stat should be in action considered since, although ute minors are not considered legis though host even minors are social alcohol, competent the effects of handle latively incompetent determined handle ef they operate presumes competent law are alcohol). fects of Johnson, nonnegligently); Sage automobiles v. (Iowa 1989) (agreeing 437 N.W.2d However, predates I note that Vance Kaatz reasoning Longstreth)-, court’s Batten precedential decision and is therefore of little Bobo, (Law N.J.Super. 528 A.2d 572 value to this court. Div.1986) (although statute’s intent is to maturity, minors lack of minors’ own according ex- con- to the same standards its conclusion the selves arriving at only exaggerates pected adults. majority of trary, the not Vance, the ignores policy but it Morris and Similarly, expect persons operat- all The forth Kaatz. unambiguously set ing motor vehicles to conform to an adult therefore do little cases Morris and Vance Keeton, care. Prosser standard of See judiciary persuade me that the should (5th ed. Prosser and Keeton on Torts 181 exception to preserve “special statute” the 1984); Howell, Krieger v. 109 Idaho rule the ab- contributory negligence the (1985). I Although agree P.2d 614 encouragement to any legislative sence of driving while minor’s willful conduct do so. does constitute an interven- intoxicated ing completely the act sufficient to bar Indeed, Legislature’s Alaska recent the recovery against minor’s the licen- negligence comparative codification of see, beyond question me it strikes to be of intent rule would seem evidence negligent operation such of a vehicle principles apply comparative negligence should considered the fact finder be actions, brought including to all those un- degree assessing the of fault attributable der AS 04.16.051. Alaska Statute 09.17.060 party. to each comparative policy adopting states rule, negligence 09.17.080 AS instructs licensees, deterring liquor As for apply rule judiciary all “[i]n comparative rule does not allow involving fault of more than one actions escape responsibility licensees to for their action_” 09.17.080(a). party to AS conduct. unlawful Vendors continue added). section, (Emphasis Neither how- checking have a decided interest ever, language any limiting to in- contains purchasers. young-looking of identification legislature’s intent that dicate the actions allow, however, the defense What does brought under AS 04.16.051 be treated un- just eq- finders fact to achieve der other rule.3 some uitable outcomes based on the cir- overall of cumstances each case while also fulfill- majority’s concern that minors ing jury of 04.16.051. A AS negligent would deterred from ac- not be can apportion- be instructed to make some if de- tion even specific of ment of fault under the facts fense licensees does was available gravity each to account for the case today any per- not make its decision more selling law by licensee’s violation of Alaska my opinion, allowing suasive. In a rule protected class. alcohol to member of would, negligence defense Thus, the vendor violates the law will fact, on the have a deterrent effect actions compa- civilly be liable for its action. The However, of I do not see the issue minors. only mechanism ensures rative deterrence; in this one case as dispropor- licensee not bear a will negligent- instead individuals who whether solely tionate amount fault because it is ly to their own should contribute “deep pocket” deemed the of the lawsuit. legally held for their be accountable con- majority’s today To extent rule I why duct. fail to see minors should not precludes equitable tailoring such to reflect capable accepting some re- be deemed case, of each I cannot individual merits their sponsibility for actions where alcohol join its decision. routinely expect is concerned when we mi- responsibly nors to in other areas act example,

law. For we often determine that twenty-one well under the criminally be as adults tried because capable conducting

we deem them them- Kaatz, logical majority more re- reasons that because we have foundation. After 09.17.080, "charged” cently plaintiff with be never a minor con- AS fault should circumstances, legisla- tributory chargeable some fault in these none will to minors absent clear contrary. expression charged be 09.17.060. lacks a

Case Details

Case Name: Loeb v. Rasmussen

Court Name: Alaska Supreme Court

Date Published: Dec 13, 1991

Citation: 822 P.2d 914

Docket Number: S-3450, S-3464

Court Abbreviation: Alaska