*1 McGill, Rose SOWINSKI James Liquor Delrois Bar and
d/b/a
Store, Appellants,
v. WALKER, Rep- Patrick
William Personal
resentative of the Estate of Robert Ja- Walker, Walker,
son Patrick William Walker,
Donna Irene and Rhonda Walk-
er; Vaughn, Donald Lawrence Personal
Representative of the Estate of Justin Vaughn,
Daniel Donald Lawrence
Vaughn, Vaughn, Appellees. and Donna Walker, Repre- Patrick
William Personal
sentative of the Estate of Robert Jason
Walker, Walker, Patrick William Donna Walker, Walker;
Irene and Rhonda Vaughn,
Donald Lawrence Personal
Representative Estate of Justin Vaughn,
Daniel Donald Lawrence
Vaughn, Vaughn, Appel- and Donna
lants, Alaska, Appellee.
State of
Rose Sowinski and James McGill d/b/a Liquor,
Delrois Bar and
Appellants, Walker, Repre-
William Patrick Personal
sentative of The Estate of Robert Jason
Walker, Walker, William Patrick Donna Walker, Walker;
Irene and Rhonda Vaughn,
Donald Lawrence Personal
Representative of The Estate of Justin Vaughn,
Daniel Donald Lawrence
Vaughn, Vaughn, Appellees. and Donna S-12114, S-12203,
Nos. S-12734.
Supreme Court of Alaska.
Dec.
Rehearing Stricken Feb. *6 summary judgment.
the State personal representatives of the decedents' estates and appeal. the decedents' families The claims against proceeded DelRois judgment to final jury after a jury trial. The found DelRois partly responsible apportioned to it a plaintiffs' share damages. DelRois appeals. holdWe the State did not have a duty either to maintain the access road or to remove running the cable across it. With respect appeal, DelRois's because we con- clude that legislature's adoption pure liability several supersedes AS 09.17.080 Rasmussen, 1 holding our in Loeb v. we hold the superior court in requiring erred to bear the decedents' share responsibility for the accident. We conclude that under system comparative Alaska's negligence pure Hability, several a dram shop is percentage liable for its of fault in ac- Tugman, Sarah Anchorage, Appel- J. tions shop between the and a minor that lants Rose Sowinski and James McGill. shop's provision involve the of and the mi- Weidner, Phillip Cohn, Paul Michael Weid- nor's use of reject alcohol. While we Del- Associates, Inc., ner Anchorage, & for Walk- arguments Rois's regarding superior er Appellants/Appellees. court's failure to reduce the Walker and Coe, Charles W. Law Office of Charles W. Vaughn plaintiffs' recovery by their settle- Coe, Anchorage, Appellants/Ap- ment amount and to exclude various testimo- pellees. ny, we hold that court erred allowing enjoyment award loss of Grace, Joanne M. Attorney Assistant Gen- *7 damages by life instructing and jury eral, General, Colberg, Attorney Talis J. An- that it nonpecuniary could award damages to chorage, Appellee for State of Alaska. Likewise, Walker's sister. supe- we hold the FABE, Justice, Before: Chief rior court erred in instructing jury that it MATTHEWS, EASTAUGH, CARPENETTI, could damages award par- to the decedents' WINFREE, and Justices. ents for loss of consortium for the decedents'
post-majority period. We therefore vacate OPINION judgment against DelRois and the vari- ous awards to the Walker Vaughn plain- and MATTHEWS, Justice. tiffs and remand for modification. I. INTRODUCTION After consuming purchased alcohol at Del- II. AND FACTS PROCEEDINGS Store, Liquor Rois minors Robert Walker Vaughn and Justin together rode on an ATV This case arises from an ATV accident in and were killed they when struck a boys cable which two died. parties While the dis- stretched across an per- facts, access road. pute The appears that sometime in representatives sonal of their estates and 24, 1996, the late evening of June early or decedents' families sued provid- DelRois for morning of June minors Justin ing boys alcohol to the and Vaughn the State of and (collectively Robert Walker "the failing Alaska for decedents") to maintain the access road both they consumed alcohol had purchased free of hazards. Liquor superior granted DelRois The Store.2 After court (Alaska 1991). 1. 822 P.2d 914 In 1996 DelRois was owned Rose Sowinski and James McGill. Rose's surname later Crystal sons, and decedents killed their but the drinking, ing the cable that Binghams eventually settled plaintiffs and along a northeast rode an ATV Brueggeman representatives River, personal these claims. 8 The Knik to the adjacent beach estates sued to recover for of the decedents' in four o'clock At about Vaughn driving.3 pain suffering, off of and loss of Vaughn the ATV the decedents' morning, turned life, earnings. future enjoyment of and loss of an ac southwest down and drove the beach families-including Justin The decedents' Knik the beach to that connected cess road (Donald and Donna Vaughn's parents along the access Vaughn Road. drove River (Wil- parents Vaughn) and Walker's Robert road, by Raone through property owned Walker) (Rhonda liam and Donna and sister property onto owned Bingham,5 and erossed damages for Walker)-sought son, Raone's government. by the federal recover and loss of consortium.9 emotional distress strung a across Bingham, had cable Carl prevent federal land road on the summary judgment, access The State moved for entering Bingham prop trespassers land on which arguing that it did not own the cable, killing erty. The ATV struck located and that there the access road was or min within seconds holding Vaughn and Walker other for the State was no basis they suffered. whether It is unknown utes.6 road. failing liable for to maintain access and parents, Donna William Robert Walker's all superior agreed court and dismissed The Walker, Walker, sister, were Rhonda and against claims the State. The Walker sev approximately accident at notified of the plaintiffs appeal. morning and arrived on en o'clock that same Vaughn plaintiffs' claims The Walker and to view the decedents' time
the scene jury trial. proceeded to a against DelRois bodies. special superior provided a verdict the dece- representatives personal answering questions jury. form families the decedents' jury estates and made factual find- dents' this form the several Vaughn plain- (collectively "the Walker damages each ings, including suffered tiffs") percentages parties apportioned plaintiff, sued several acci- resulting from the found that fault for the accident. to recover decedents providing provided aleo- alcohol to the They sued DelRois dent. and the State underage decedents
hol to the of the accident. that this act was a cause road free of failing maintain the access thirty-five percent apportioned It to DelRois jury appor- accident. The of the fault for the hazards. The Walker twenty-five percent of the fault for tioned Bingham for erect- Raone and Carl also sued William Walk- included: 7. The Walker changed Carol McGill was also to Gama. father, er, personal represen- Walker's in the case. Robert named defendant *8 Walker; Robert of Robert tative of the Estate Vaughn point appears 3. It that at some Walker; parents, William and Donna Walker's parties to the driving escape two other Weeks; grandmother, Glenna Walker's Robert Emmanu- litigation, K. Cancel Shell and Sandra Katie, Rhonda, siblings, and and Robert Walker's Cancel, chasing in another the ATV el who were Walker. Jonathan negligible relevance to chase is of vehicle. This Vaughn included: Donald The appeal. the issues on father, personal rep- Vaughn, Vaughn's Justin terminology agreed-upon for this no 4. There is Vaughn of Justin and of the Estate resentative litigation pleadings have referred to path; in this Vaughn's parents, Donald and Donna Justin "driveway," "roadway," or "Old Knik it as the Vaughn. the "access We refer to it as River Road." road." Vaughn plaintiffs also sued The Walker and 8. chasing Vaughn the access onto Cancels for Bing- variously spell Ms. 5. Court documents claim is not road, but the disposition We or "Roane." use ham's name "Raone" appeal. relevant to this spelling was used in the because that ''Raone" agreement into between the entered settlement siblings Though Walker's two other Robert Bingham. Vaughn plaintiffs and Ms. Walker and Walker) (Katie grandmother and and Jonathan sued, (Glenna Weeks) disposition of their also Brueggeman escaped severe but Crystal appeal. pertinent to this claims is not injuries. nonfatal THE AND III. WALKER VAUGHN Vaughn percent to Justin and two accident jury The also valued the APPEAL Robert Walker.10 PLAINTIFFS' of the decedents' estates-the decedents' loss Vaughn plaintiffs appeal The Walker and life, suffering, enjoyment loss of pain and superior court's determination that earnings-and future the loss of and loss of duty State did not to maintain the damages families-emotional the decedents' keep access road and it free from hazards. and loss of consortium.11 claims, helpful To understand their it is judgment court entered history. The understand the access road's Vaughn plaintiffs. and favor of the Walker through The access road runs northeast pay further ordered The court DelRois to pieces pieces two of land. These of land damages responsibil for its share of running share a common border north and accident, ity thirty-five percent, for the but pieces south. Both of land are bordered on responsibility, also the decedents' share of by the north Knik Bingham River. The twenty-seven percent total.12 The court rea family piece has owned the eastern of land soned DelRois could not reduce its share periods for all time relevant to this case. As responsibility that of the decedents' below, explain government we the federal because the court found that Alaska statutes piece has owned the western of land for all permit law comparative and case did not periods time relevant to this case. negligence appeals. defense. DelRois early began 1970s plan- the State The certificate for distribution of the final ning to Knik construct River Road. The judgment was mailed the clerk of court on road run along was to east to west the south- November 2005. The Walker portions pieces property. ern of both The attorney's moved for fees problem for the State was that it did not own May opposed the mo- piece either of land. grounds. tion on untimeliness After consid- ering memoranda, supplemental the court respect land, With Binghams' merely State despite condemned the land it needed decided to award fees the lateness of the motion. partial The court awarded right-of-way. attor- for its Binghams objected The ney's $160,000 fees of more than under the and claimed that construction of Knik River "contested with trial" schedule of Civil Rule Road would sever the southwest corner of 82(b)(1). separate DelRois has filed a appeal their land. The Binghams State and the from this award which we consider with its dispute by agreeing settled this appeal on the merits. State would take portion title to the severed jury apportioned remaining fault be- to the time of trial; $10,000 for non-eco- past tween the decedents' (including, Cancels, nomic among loss to the time of trial parents, Binghams. life); things, enjoyment other loss of $400,000 for future economic loss; $10,000 for future (loss life). enjoyment non-economic loss jury damages 11. The assessed for the Estate of jury damages Vaughn assessed for Donald $10,000 past Robert Walker at for economic loss at $150,000 for trial; $10,000 non-economic loss past past time of non-eco- $75,000 for future non-economic loss. nomic (including, among loss to the time of trial assessed for Donna $300,000 things, life); enjoyment other loss of $125,000 past non-economic loss and loss; $10,000 for future economic for future *9 $75,000 for future non-economic loss. (loss life). enjoyment non-economic loss jury damages The assessed for William Walker responsible sixty-two DelRois was thus for at $125,000 for percent (twenty-seven percent plus thirty-five non-economic loss past $75,000 for future non-economic loss. percent) principal of this loss. The awarded to jury damages The assessed for Donna Walker plaintiff recovering against each DelRois was $125,000 past at for non-economic loss and by multiplying applicable thus arrived at ver- resulting $75,000 for future non-economic dict amount .62. The awards were: loss. jury damages Walker-$204,600; The assessed for Rhonda Walker Estate of Robert William $60,000 past Walker-$124,000; Walker-$124,000; at non-economic loss and Donna $40,000 for future non-economic loss. Walker-$62,000; Rhonda Estate Justin The assessed for the Estate of Vaughn-$272,800; Vaughn-$139,500; Donald $20,000 Vaughn past
Justin
economic loss
Vaughn-$124,000.
Donna
trial,
summary
moved for
Before
the State
Binghams ac-
compensate
land and
duty
this
it had no
judgment,
arguing that
relevance to
particular
cordingly. Of
keep it
access road or
free from
maintain the
agree-
in the settlement
the State
appeal,
was not liable for the
and thus
road would
obstruction
the access
promised
ment
The Walker and
accident.
it crossed fed-
road" where
"public
a
remain
oppo-
in their
a number of theories
presented
land.
eral
support
motion in
of such
to the State's
sition
difficulties, howev
greater
had
The State
granted the
duty.
The
a
er,
across the west
obtaining
right-of-way
a
summary judgment.
motion for
State's
piece
the western
Before 1971
property.
ern
managed
federal land
property was
Correctly
Superior
Held
The
Court
A.
Management
Land
Bureau
Federal
Did Not Have a Con-
the State
(BLM).
Congress withdrew
In 1971
Duty
the Ac-
To Maintain
tractual
Settlement
Alaska Native Claims
in the
land
cess Road.
requested
the State
Act.13 In 1972
plaintiffs argue
The Walker
right-of-way to be
a
grant
BLM
State
duty to
the State had a contractual
denied this
River
BLM
Knik
Road.
come
road, arising from its
maintain the access
again applied to
In
the State
request14
Bingham in the
settlement with Carl
application
The
right-of-way.
BLM for a
action.
In the 1974 settle-
condemnation
right-of-way
a 200-foot-wide
requested
ment,
pres-
"the two
agreed
State
BLM
land.
In 1987
through the federal
connecting
ently
access roads
de-
constructed
a 100-foot-wide
finally granted the State
remaining property with the Knik
fendant's
Road, extend
along Knik River
right-of-way
public
plaintiffs
roads." The
River Road are
of the centerline
fifty
on each side
ing
feet
ambig-
"public
that the term
road" is
contend
Road.
Knik River
uous,
usage, and
legal
and common
both
in their favor on
should be construed
thus
strung a cable
Binghams
In 1986
promise by
summary judgment
to include
keep trespassers off
road to
across the access
maintain the access
protect
the State
placed the cable
Bingham
their land. Carl
traveling public.
of the
road for the benefit
Knik
centerline of
feet from the
roughly 100
claim that extrinsic evidence
The
Road, fifty
beyond the State's
feet
River
intended to maintain
that the State
shows
the time of
Between 1986 and
right-of-way.
the access road.
accident,
cable caused at
the decedents'
a car
agreement
be-
other accident:
answers that
least one
The State
Knik
Road and collided
off of
River
turned
obligate
Bingham did
it and Carl
tween
cable,
damage.
sustaining minor
with the
road for the
maintain the access
the State to
this acci-
the State of
Binghams notified
certainly
not for
Binghams and
benefit of the
trooper
report.
filed
dent and state
ar-
parties.
third
State
benefit of
merely obligated
gues that
this settlement
accident,
the access
the decedents'
As of
the road to
preserve access on
the State to
Road, through
from Knik River
road ran
Binghams
property for the
Bingham
land-including
portion
federal
themselves.
Bingham
across which Carl
access road
summary
grants of
review
We
Binghams'
strung
cable-and
onto
goal of contract
designated
judgment
never
de novo.15
property.
The State has
to the reason
give
effect
highway
interpretation is
part
road as
of the state
the access
pursuit
parties.16 In
expectations of the
able
access
recognized the
system and has never
lan
the contract's
goal, we consider
of this
right-of-way.
road as a state-owned
Inc.,
Group,
(2006).
1610(a)(1)(A), (b)(1)
Monzingo
Air
v. Alaska
§
13. 43 U.S.C.
Village Corporation selected
(Alaska 2005).
the Eklutna
658-59
*10
land,
application
although
was still
this
litigation.
pending at the time of
Ass'n,
Elec.
814
v. Homer
16. Stepanov
1991).
(Alaska
734
Road in
Knik River
State constructed
14. The
request
in 1976.
denied the State's
1973. BLM
support
dence to
a reasonable inference to
as relevant
extrinsic
guage
as well
evi
subsequent
contrary.23
the
dence-including
conduct of the
State has
main-
interpretation
contract
is
parties.17 While
portion
tained the
of the access road where it
law,18
appro
generally a matter
and thus
connects to Knik
pho-
River Road. From a
tograph that was taken after the accident of
summary judgment,
ques
factual
priate for
portion
the
of the access road across which
respect
with
to extrinsic
arise
evi
tions
Binghams
cable,
strung
portion
that
parties'
Summary
or the
intent.19
dence
appeared completely
unmaintained.
AAC
appropriate only
making
if
judgment
is
after
generally prohibits
Department
20.040
open
all reasonable inferences about such
Transportation
and Public Facilities
from
questions
nonmoving
in favor of the
factual
maintaining roads that the State has not
moving party
party,
is still entitled to
designated
highways,
as
such as the access
judgment
a matter of law.20
as
road.
It is normal for the State to remove
matter,
agree
As an initial
we
roads,
from
obstacles
state-maintained
but
Vaughn plaintiffs
the Walker and
that
Binghams
left the cable across the access
language
agreement
ambiguous.
of the
is
road for a decade before the accident. This
promised
State
the access road
strongly suggests that
has
State
never
"public
plain
would be a
road." The
mean maintained the access road.
ing
"public
merely
of the term
road" is
Vaughn plaintiffs provide
The Walker and
may freely
road that
public
use.21 The
contrary.
no evidence to
They
cite the
"public
appear
term
road"
not
does
to have
deposition testimony
Beardsley,
of Daniel
any particular meaning in Alaska law-it
is
Right-of-Way Agent
Chief
for the Alaska
not defined
reg
either
Alaska statutes or
Department
Transportation
and Public
ulations. While there are numerous roads
Facilities,
Region,
Central
through
from 1987
in Alaska that
public
are accessible to the
Beardsley
But
testified that the State
maintain,22
that the State does not
there are
only placed and
gravel
maintained
on the
also a vast number of
by
roads used
entrance to Knik River Road to allow travel
public that the State does maintain. Given
between this road and the access road. The
facts,
contradicting
these
possi
would be
Walker
also cite the
ble based on the
language-
settlement's
deposition
Kepler,
of Chris
maintenance
though
necessary-for
the State or Carl manager for
Department
Transporta-
Bingham to construe the settlement as obli
tion.
highlight
Kepler
gating the State to maintain the access road.
Department
admitted that
Transporta-
Accordingly, we must
look to the extrinsic
might
tion
upon
have relied
an erroneous
surrounding
evidence
the settlement
to de map that showed the
right-of- way
State's
termine whether the State had such an obli
extending 100
feet
the centerline of
gation.
Road,
Knik
just past
River
Bing-
where the
matter,
As another initial
accept
we must
placed
testified,
hams
Kepler
cable. But
the State has never maintained
Beardsley did,
the ac-
Department
cess road because there is insufficient evi- Transportation only
gravel
maintained the
AmJurZ2p
17. Leisnoi,
Inc. v. Stratman,
956 P.2d
Highways,
452, 454
see also 39
Streets,
(Alaska 1998).
(1999) ("Whether
§
Bridges
'public'
a road is
'private'
by
right
is determined
extent of the
it,
right
use
and not
the extent to
which that
is
18. Norville v.
Carr-Gottstein
Co.,
Foods
84 P.3d
(Alaska
it.").
2004).
by quantity
exercised or
1000 n.
of travel over
Sprucewood
Corp.
19. See
(AAC)
Inv.
v. Alaska Hous.
22. See 17 Alaska Administrative Code
Corp.,
(2004)
Fin.
(prohibiting
20.040
the state from main-
taining
part
Highway
roads not
of the Alaska
Norville,
System).
1145 throughout these this road Bingham's use of cannot Accordingly, we Road. Knik River Thus, future. the State changes and into the infer, sum- purposes of for the reasonably has main- the State that mary judgment, pressing issues Bingham had two and entering the settlement-com- mind when the access portion of any significant tained his use of Bingham preserving and pensating road. could Both of these issues the access road. main issue-whether Turning now requiring the State resolved without be condemna- that the shows evidence extrinsic maintain the access road. contractually obligated
tion settlement is clear access road-it to maintain State obligation. had no such the State that Correctly Superior Held B. The Court maintained has never the State fact that a Tort Did Not Have the State strongest evidence provides road access Duty the Cable from To Remove contractually obligated to do that it was Access Road. the con- Bingham had intended If so. 24 Carl plaintiffs Vaughn The Walker contractually obli- settlement demnation duty to a tort argue that the State breached road, the access to maintain gate the State free from eneroach- keep the access road at least onee complained likely would he the existence of question here is ments. following the execu- twenty years during the law, question inwas of duty of care. This is that the State a tort agreement tion of that appli an Absent we review de novo.26 which does not disclose the record breach. Yet statute, regulation, con duty Indeed, based on Binghams cable complaint. such a doctrine, tract, tort existing common law on the or maintenance at least some performed duty whether a themselves, road as to plowing the relevant considerations access road foreseeability of the winter"25 exists include the of care allegedly harm, the connection between suggests Rather, the evidence injury, moral conduct and the tortious ostensibly entered Bingham and Carl State conduct, prevention blameworthiness other, pur- unrelated for two the settlement harm, on the defendant future the burden of First, Bingham needed the State poses. duty, community imposing such compensationthat amount of to settle insuring against such possibilities the land Bingham for provide State would harms.27 Second, him. the State had taken Bingham to ensure Bingham wanted for us to compelling reason There is a road of the access to have use would continue duty upon the State: reject imposing a tort property. to his purpose getting for the has al Transportation Department two roads was one of access road and has deter question ready considered the property be- reach his Bingham could which not maintain should that the State mined Road. As Knik River built fore the State in 17 implemented policy is roads. This 1970s, such above, early the sta- in the described provides "[the 10.020(g), which AAC road sat which the access the land on tus of driveway maintaining a and cost of protect burden sought The State was in flux. ascertaining the in this case because follow Beck 452, P.2d Straiman, v. 956 Leisnoi, Inc. 24. See 1998) determining duty Walker and (Alaska (holding that in existence of the tort 454 parties, balancing competing contracting courts con- the intent of involves assert conduct). subsequent setting sider their that does not policy prerogatives in a require fact-driven determinations. disposes also evidence 25. This uncontested argument Vaughn plaintiffs' Walker and Fairbanks N. Star RM.W. v. See D.S.W. ex rel. road and thus "possessed" the access State (Alaska 554, P.2d 555 Borough Dist., 628 Sch. premises liability. theory of liable on a 1981) (quoting v. San Francisco Peter W. Unified State, Transp. Facili- Dep't & Pub. 26. Beck v. 854, 814, 131 Dist., 60 Cal. Cal.Rptr. Sch. App.3d 1992); 105, (Alaska ties, (1976)); see also v. Peak 837 P.2d Parnell see also 859-60 Oilfield 2007); Raleigh, (Alaska & Tug Barge, & Inc. Arctic Schwarz 757, 174 P.3d Co., Serv. 1998); (Alaska Powell, Div. States, P.2d v. United Kallstrom Neakok, Corr., Dep't & Soc. Servs. Health 2002). (Alaska We n. 7 1127 & *12 1146 approach highway right-of-way within a road law legal does not alter its actual obli- Indeed, gations.30 negligence, by the law of by upon driveway
is
the lands served
a
or
definition,
Similarly,
imposes liability upon
17
approach road."
AAC 20.040
defendants
may
who
not have
any
road
known that their conduct
maintenance of
"[nlo
states
performed by
nature shall be
the state on a
was tortious.
impose
The law seeks to
tort
part
highway which is not
they
socially
and,
of the Alaska
duties where
are
desirable
conversely,
they
withholds tort duties where
System,
Highway
except by reimbursable
socially
are
undesirable. 31 If we would oth-
agreement."
lightly impose
We will not
a
impose
duty
erwise refuse to
a
on the State
duty upon the State to act in contravention of
road,
to maintain the access
then we will not
judgment
agency.28
the informed
of an
The
impose
simply
one
because the State believed
Vaughn plaintiffs' arguments
Walker and
are
it existed.
justify
departure
insufficient
a
from the
Department
Transportation's
Vaughn plaintiffs
The Walker and
assessment.
addi-
tionally argue that
the State's creation and
Walker and
also ar
gravel
maintenance of a
connection between
gue that the State's breach of its contractual
Knik River Road and
obligat-
the access road
obligation to maintain the access road makes
ed the State to maintain the entire access
contract,
only
the State liable not
but also
road.
inappropriate
impose
But it is
lia-
argument
in tort.
light
This
fails in
of our
bility on the State for the
any
maintenance of
holding that the State had no such contractu
access road
happens
to connect
to a
Further,
obligation.
al
previously
we have
agree
state-maintained road. We
with the
rejected
argument
that a breach of con
analysis
court's
of this contention:
tract
independent
alone-without an
viable
principle
plaintiffs' argu-
distilled from
theory
recovery-could
of tort
give rise to
ment
every
is that
time the state connects
damages in tort.29
road,
private
driveway, or trail with a
highway,
state
Vaughn plain
Walker and
duty
state assumes a
guarantee
tiffs further contend that
safe
passage
the State's mistak
unobstructed
length
road,
en
duty
private
belief that it
of the
driveway,
had
to maintain the
or
trail.
Knik
The court
River
must conclude
right-of-way up
Road
that such a
to 100 feet
reaching
stand,
far
conclusion
beyond
espe-
cannot
the centerline of
portion
that road-a
cially in
long
Alaska where
stretches
of land that
included the cable-gave
rise to
rural and
highway
urban state
duty
an actual
connect
to do so.
In our discussion of
[trails],
paths,
innumerable
driveways,
Vaughn plaintiffs'
Walker and
contract
public
private
roads.
claim, we determined that the evidence can
reasonably
not
interpreted
support
be
Finally,
the Walker
factual conclusion that
the State maintained
argue that
knowledge
the State's
of the dan
Moreover,
the access road.
ger that
even if the State
posed,
the cable
followingits investi
erroneously believed
obligation
that it had an
gation
prior
car
involving
accident
road,
to maintain the access
this
cable,
belief would
gave
same
duty
rise to a tort
to re
give
rise
obligation
to an actual
to do so. move the cable or to warn travelers of its
Generally, a defendant's mistaken
danger.
view of the
The factors
imposi
relevant
recognize
general
While we
(Secomp)
rule that com-
§
Restatement
or Torts
288C cmt. a
pliance
regulation
with a statute
or
does not
(1965))).
complete
constitute a
liability,
defense to tort
exception
general
case involves an
to this
rule.
29. See Alaska Pac. Assurance Co. v. Collins, 794
Doses,
224,
See 1 DanB.
§
THELawor Torts
at 573
(Alaska 936,
(2001);
Plough,
see also
Inc.,
Ramirez
CallRptr.2d
Cal.4th
Wayne
LaFave,
R.
Suestantive Crminat Law
(1993) ("'Where
Cf.
the evidence shows no un-
5.6(d) (2d ed.2003)
§
(stating that the criminal
circumstances,
usual
ordinary
but
situa-
generally
law
does
liability
not withhold criminal
contemplated by
tion
the statute or administra-
simply because the defendant was unaware his
rule,
tive
the 'the minimum standard
prescribed
crime).
conduct constituted a
by
legislation
regulation
accepted
or
be
fact,
the triers the court as a matter of
law,
Neakok,
as sufficient for
(quoting
the occasion.'"
31. See
C. road. the access duty to maintain had no Arguments Estoppel Are Without estoppel Vaughn plaintiffs' and The Walker Merit. conclusion that the depend upon a arguments duty to that it had a publiclystated had argue State plaintiffs and The Walker a conclusion equitable But such quasi-estoppel, the road. maintain that the doctrines estoppel justification bar on this record. no estoppel, and collateral has eq duty quasi to Vaughn plaintiffs' it had no arguing that from Walker State For hazards. are unfounded estoppel arguments free from keep the access road uitable rejected make the correctly estoppel, the type superior each entering into the by argument: general same them. by using erro- settlement
condemnation estop- collateral doctrine of represented to the maps, the State neous relitigating issues from parties pel prevents maintaining access it has been public that against already has decided a court the dece- upon which representation road-a party a estoppel will bar Whether their demise. them. Collateral relied to dents Stratton, 1163-64 P.2d v. D.S.W., 36. See Smith (holding that the 628 P.2d See 1992). important (Alaska factor in foreseeability is an of harm & n. duty). impose determining a tort whether to Weeks, TT9 P.2d 37. Dressel deciding (holding whether that when id. 33. See duty, impose courts should consider a tort to impos- likelihood a and the cost of such burden harm). 486 & n. 19 Krize, duty prevent 38. Krize ing would such (Alaska 2006). deciding (holding whether that when id. 34. See duty, consider impose courts should a tort 39. See id. con- defendant's blame attached moral duct). Enters., Inc., v. Marchant rel. Smith 40. Smith ex (Alaska 1990). deciding (holding whether that when id. 354, 356 35. See duty, should consider impose courts a tort duty). society such a burdens relitigating adjudicated an issue in a then added percentages these together and (1) prior action if four conditions are met: held that pay sixty-two DelRois must percent party party privity or in with a damages. of the total (2) action, party in adju- the initial the issue argues prior dicated action is identical to the erred finding that shop Alaska's dram (8) party relitigate, issue the seeks to statute, 04.21.020, subject AS is not Alas issue was resolved the first action (4) ka's most merits, recent tort judgment final on the reform which enacted *14 pure liability. several While DelRois ac determination of the issue was essential judgment.41 the final knowledges that our holding in Loeb v. Rasm suggests
ussen'42
that the doctrine of com
The Walker
parative
negligence
apply
does not
where the
argue that
stipulated
State's
settlement
victim is a
negligence
minor and his
results
action,
in its condemnation
which was incor
from the
illegal
defendant's
sale of alcohol to
porated
judgment,
into a final
obligated it to
him,
argues
DelRois
that AS 09.17.080 abro
maintain the access road and thus that
gated Loeb and
imposes
system
now
a
State
collaterally estopped
is
relitigat-
from
pure comparative negligence where several
ing this issue
argument
here. This
is with
liability applies to all parties-including min
out
adjudicated
merit. No court has
ors.43
seope of the State's duties under the condem
nation settlement.
respect
With
their col
Walker and Vaughn plaintiffs oppose
estoppel argument,
lateral
the Walker
argument.
this
They generally argue that
Vaughn plaintiffs again assume the conclu
statutory
newer
system is too broad to
they
sion that
trying
prove:
are
the State
abrogate our prior determination that stat-
promised to maintain the access road free
barring
utes
the sale of alcohol to minors
from
Accordingly,
hazards.
argument
represent
"exceptional
statutes"
pre-
fails and the
correctly rejected
clude a vendor
asserting
from
the minor's
it.
fault in negligence
a
suit.
This
yet
court has not
opportunity
had the
IV. DELROISS APPEAL
to address the status of
shop
Alaska's dram
light
law in
adoption
Alaska's
pure
Superior
A.
Court Erred
Hold-
liability.
several
Whether a defendant's lia-
ing that Delrois Should Bear
bility arising from the sale of alcohol to a
Responsibility
Decedents' Share of
minor is
reduced
negligence
minor's
for the Accident.
in purchasing and consuming the alcohol is a
Using a special
provided
verdict form
by question of law which we review de novo.44
court,
found that the decedents
together
twenty-seven
bore
We hold
percent
that the enactment
pure
of the
sever-
liability
al
responsibility for the
AS
represents
09.17.080
accident
and that
Del-
thirty-five
Rois bore
percent. The court
changed condition and that AS 04.21.020is
Ass'n,
Matanuska Elec.
Chugach
Ass'n v.
Elec.
explained
45. We have
(Alaska 2004)
561 n.
(citing
prior
decision
be abandoned because of
Universal Motors,
Inc. v.
representative of her estate sued Leo Ras-
tem of comparative negligence can coexist
53. Petrolane
Inc. v. Robles,
58. Id. 65. Id. at 919. Id. Id. at 918-19 & nn. 8 & 10. Id. Id. at 920 n. 15. places thus system This fault. relative dant's liability pure or and several joint either with otherwise judgment-proof be of a However, choice risk liability. 68 several aAs plaintiff. on the defendant immune pure liability and several joint tween strong guar- a as result, provide not it does be choice ultimately a liability is several as a plaintiff a compensation full antee policies. fundamentally different two tween by liability. But and several joint system of to consider us requires this case Accordingly, lia- several goal, pure policy sacrificing this "ex an represents still 04.21.020 AS whether an indi- liability imposed bility cabins most Alaska's light of in statute" ceptional number of in a so It does defendant. vidual initiatives. tort reform recent First, the effectiveness it blunts ways. vital continued assessing the Before sues whereby plaintiff pleading, "shotgun" an 04.21.020 of AS designation our ity of only margin- may be who wealthy defendants under statute, important it is exceptional injury. responsible ally ultimately leads process stand wealthy defen- use of Second, prevents it to be found is not A statute designation. full loss against insurers as social dants it examining merely by "exceptional" most Finally, and plaintiff. suffered designa "exceptional" Rather vacuum. notion implements fundamentally, appli two analysis of of an result tion is the defen- only pay for should a defendant is A statute policies competing but cable damages. fair share dant's determines a court when "exceptional" found liability does and several joint system of A so are statute of one goals policy reached conclusion conflict not application the risk compelling excep- an represents AS 04.21.020 Loeb those undermining poses statute another liability em- and several Joint tional statute. these Under unacceptable.69 becomes goals whole. plaintiff making phasizes the former cireumstances, deems a court toward works doctrine exceptional statutes applica to avoid so as "exeeptional" statute provider liquor making the goal this same statute. latter tion for the also but its conduct only for liable subsequent conduct. patron's doc- impaired exceptional statutes a. *17 joint harmony with in is trine pure system of current But Alaska's liability in is but several exceptional with liability conflicts several liabili- pure several with tension support a not and does doctrine statutes ty. exceptional an is AS 04.21.020 finding that the doe- purpose primary The doctrine statutes exceptional The statute. type of liability, the joint and several trine pure by which methods the three violates Loeb, make is to in applied liability that individu an to cabin meant liability is several lability several Joint whole. plaintiff First, doctrine liability. defendant's al aof allocating the risk goal this achieves liquor provid sue the to a minor encourages defen immune otherwise or judgment-proof culpability provider's liquor if the er even Thus, the doe- co-defendants. other to dant fault. minor's relative minuscule was mak choice policy a social represents trine was exceed behavior minor's where Even any concerns over whole plaintiff ing a liquor find a egregious, ingly an imposed liability could be excessive dam for at fault partially at least provider defendant. individual intoxication. minor's resulting from ages liquor pro effectively causes Second, it pure purpose primary mi all of insurance provide vider de individual an liability is to shield several But if furnishing alcohol. after conduct nor's defen- of the liability in excess fendant con- context in the Wedmore, "exceptional statutes" ing Structures, 605 Inc. See Arctic Deli Schooley v. Pinch's negligence); tributory 431-34 426, P.2d Inc., Wash.App. Mkt., Prosser, Contributory Negli- L. William See defined ("[The is (1996) class protected 1048-49 Statute, Minx Violation gence as Defense policy."). according to social (1948); generally Restate- see 118-23 L.Rev. (defin- (1965) c § cmt. (SEconp) Torts ment premises, the minor leaves the provider from AS pursue 09.17.080 to policy sup ability has no to control the minor's subse- porting AS 04.21.020. path This would re quent Finally, decisions. impor- and most quire us to policy abandon the goals of AS tantly, exceptional statutes doctrine cre- 09.17.080: ensuring individual responsibility immunity party ates for one who is at fault. shielding defendants from unfair liabili liquor provider pay must only for its ty. However, adopting position DelRois's damages but share of also for damages at- would allow us to follow AS 09.17.080 and AS tributable to the minor. This creates the still, 04.21.020 while below, as discussed ef problem immunity exact that drove tort fectuating much policy underlying AS 04.21.020.71 pure reform toward several liability-by defi- nition, exceptional statutes doctrine means that one defendant paying will be jurisdictions' b. Other experiences damages attributable to someone else's irre- support our conclusion sponsibility. Thus, the determination comparative negligence with
Loeb that AS 04.21.020is an exceptionalstat- pure liability several is consis- ute inis direct conflict with policies un- tent with policy Alaska's derlying adoption pure voters' several against underage drinking. liability. Because minors are unable meaningfully We must therefore determine if excep- assess the risks associated with the use of tional designation statute should survive this alcohol, Alaska has a long-standing, strong inherent conflict pure with several liability. policy against underage drinking. 72 Loeb Notably, this case does not conflicting involve decided, part, as an effort to effectu- statutes. Alaska Statute unequivo- 09.17.080 policy. 73 ate this The rule in Loeb carries cally adopts liability. several Alaska Statute out policy by creating strong incentive 04.21.020 expressly does not any create ex- liquor comply licensees to with the law. ceptions to standard of liability. rules Rath- er, beyond Loeb went the statutory text and However, adopting comparative negligence reached a holding that thought we best ef- pure several liability is consistent with fectuated the statute's underlying policy. achieving public Alaska's policy against un- There is no textual conflict between the stat- derage drinking. Comparative negligence utory provisions of AS 09.17.080 and AS does not absolve liquor licensee of lHabili- 04.21.020. conflict arises when we ty. 74 The trier of fact will consider the ven- attempt to extend implement policies dor's actions when allocating fault between that those represent. statutes the minor and the vendor. 75 The trier of fact *18 Adopting the Walker and Vaughn plain will also consider the minor's actions and the position tiffs' require would that diverge we age, minor's maturity, ability, and or lack Immunity 70. granted can either be legally, as is charges. 04.11.370; criminal See AS AS exceptional done via doctrine, statutes or it 04.11.535(b); AS 04.21.030. matter, practical can exist as a as is found in the case judgment-proof of defendants. point 75. any This argument belies compar- that a negligence 71. application gives Because an ative comparative rule of a negli- vendor an incentive gence policy harmonizes the expressed to break the brazenly, concerns law serving patron a until competing statutes and a avoids conflict patron of exceedingly is Though inebriated. statutes, we need not address the rule of statuto- negligence patron of such a would be a cause of ry specific construction that a applies statute harmful behavior while any intoxicated, the bar general over a statute. See Nat'l Bank Alaska of would negligent also be purveyance for its of State, Revenue, Dep't v. 811, 817-18 of large of alcohol. quantities Moreover, a such (Alaska 1982). might situation support punitive an award of damages for reckless part behavior on the of the Loeb, 72. We discussed policy this in 822 P.2d at bar. See AS 09.17.020. We 919 & note that the nn. 11-12. Walker and sought punitive damages, 73. Id. at 919; see also id. at (quoting 917 Guin v. alleging that DelRois was providing reckless in Ha, 591 1979)). P.2d 1281, 1284 n. 6 however, jury, alcohol. The declined to award punitive damages. Apart tort, 74. liability from in liquor licensee could face against sanctions its license or even
1153 revisit- time, have many states minor. With alcohol the risks thereof, appreciate to persua- of the A reexamination topic. ed this use. 76 Louisiana, Towa, from precedents sive against strong policy a have All states re- Loeb on which Minnesota, Florida and discussed yet, as And drinking. underage 79 support erosion general a reveals lied cases in fault comparative below, many use A in Loeb adopted we position for some that recognize alsoWe as this. such confirms jurisdictions canvassing of broader bolster steps to added taken courts represents now holding in Loeb our that simul drinking while underage against policy minority view. negligence. comparative applying taneously in determined Court Supreme Iowa The Supreme Jersey New example, For legis "the Corp. 80 " [Iowa] Slager v. HWA jury special the use encourages Court fault to be comparative not intend did lature fault allocation regarding instructions 81 this But shop action." to a dram a defense effort shop in an dram minor and a between fact light in read must be language concern. policy public fully address more to is liability statute shop dram Iowa's 77 who have only those protect to "meant intox person's intoxicated participated no in Loeb cited precedents assumption or complicity by their ication persuasive force. longer have 82 alcohol purchases who person A risk." person" states "innocent shop when is not an a time a dram decided from was Loeb protection the absolute falls within who a vendor's treatment in their divided were Iowa, can as a vendor con- and statute. 83 purchased Iowa's who a minor liability to assumption held Some complicity the vendor. 78 minor's aleohol sert sumed in by the recovery any risk, bar be and thus should principles fault comparative illegally minor, though the vendor brought even shop litigation jured to dram applied minor. 84 alcohol sold fault to allocate refused Others minor. they urged and the trial procedure lenge this case. those factors jury considered ultimately accepted. among fault allocate jury was instructed but, persons, of other number parties and a Kerrigan, NJ. Vaughn plain- eg., v. Steele Walker See, urging of the at the (1997). allocat- tiffs, that fault 685, 701 A.2d jury not informed was charged to Vaughn be would Walker ed to Loeb, & n. 10. at 919 for arguments counsel During closing DelRois. allo- jury could it plaintiffs told the Walker apply refusing to (citing [clases Vaughn, id. and counsel 79. See Walker and cate fault shop ac- principles to dram comparative fault plaintiffs told the Vaughn Booze, Inc., 532 Abbey & Rd. Vaughn Booth tions" only party at fault Beef not the Slager v. HWA (Fla.App.1988); degree. Evidence 1288, 1290 fault to some So.2d was at himself 1989); (Iowa 349, 351-54 435 NW.2d Walker presented that had been Corp., 400 So.2d illegal them v. Southland Corp., Chausse it was and knew were seventeen Inc., Hydra-Mac, (La.App.1981); Keenan Vaughn none- alcohol; and consume to purchase (Minn.App.1988), rev'd 744-45 N.W.2d and both from DelRois purchased alcohol theless (Minn.1989)). N.W.2d grounds, 434 on other with another it and shared consumed of them other and the Vaughn, Walker, then minor; (Iowa N.W.2d 349 *19 four-wheeler, 80. 435 single on a all rode minor fault, jury's allocation driving. at 352. DelRois, 81. Id. against against lower weighted heaviest Walker, is consistent against Vaughn, and least 486, 488 Heddinger, NW.2d 373 v. 82. Martin the concessions evidence with the pro- shop act 1985). (Iowa the dram In Iowa answers It also Vaughn plaintiffs. Walker liquor licen- against remedy the exclusive vides juries this one like argument in cases any 352, 354. at Slager, NW.2d 435 see. virtually all allocate of course a matter will as It is true minors. the intoxicated the fault (2007); Slager, 435 Cope § 123.92 Vaughn plaintiffs known 83. Iowa Walker had the NW.2d 170 Berge Harris, 351-52; effec- at actually be N.W.2d would fault jury's allocation 1969). (Iowa 621, 625 deci- tactical different made tive, they trial arguments. But the closing sions ("'Two reasons at 489 373 NW.2d Martin, See Walker 84. it clear made one are that expressed the cases in the rule chal- any successful risk of they bore
1154
The Louisiana case cited for support
provider
alcohol
for damages the minor in-
Loeb was decided based on contributory
curred
neg-
after becomingintoxicated. 92
ligence,"85but Louisiana now follows a scheme
jurisdictions
Of the four
we relied on in
comparative
negligence. 86Under Louisi- Loeb, only
appears
Florida
to have retained a
law,
liquor
provider's
ana's current
lability
general rule barring the consideration of an
illegal
for an
sale of alcohol to a minor is
intoxicated
negligence
minor's
when the mi-
governed by
general
Louisiana's
neg-
rules of
nor sues the
shop. However,
dram
Florida,
ligence."
87Though
Alaska,
appellate
no
only
unlike
provides
court has
liability
if
vendor's
sale to
the minor
point,
was willful. 93
ruled on the
is
clear that
lower
courts
allowing
are
the consideration of a We also find that
precedents
Alaska
comparative
minor's
fault in
brought
actions
cited in Loeb have lost their value in light of
against the vendor.88
Alaska's recent
tort reforms. Loeb and its
predecessors cited
States, 94
Vance v. United
Loeb also cited an analogous Minnesota from the federal district
Alaska,
court in
considering
case
Minnesota's Child Labor
persuasive authority. 95 Vance,
In
the dis-
Standards Act. 89 The cases on which the
trict court considered a
brought
suit
by an
relied,
Minnesota court
however, were based
against
intoxicated adult
a club that served
on contributory negligence. 90These authori- him too much alcohol." 96 Though
prior
no
ties
largely
are
inapplicable given Alaska's
issue,
cases discussed the
the Vance court
adoption
comparative
negligence. More-
assumed that
04.15.020(2),
AS
predeces-
over, the
legislature
Minnesota
explicit-
"has
04.21.020,
sor to AS
exceptional
was an
stat-
ly made dram shop lability subject
to com-
ute designed
protect
minors. 97 The court
91
parative fault,"
and a Minnesota court of
reasoned that the statutory treatment of in-
appeals
applied
has
comparative
princi-
fault
toxicated adults should be analogous to the
ples in a suit brought by a
an presumed treatment of minors.
against
minor
98
profit
cannot
wrong
his own
person
and a
89. See Loeb v. Rasmussen,
1155 noting the erosion to In addition in Alaska case the first was Accordingly,Vance Loeb, that the also note in we authority cited 04.15.020(a) exceptional an was AS that hold been subse- by Loeb has represented rule adults intoxicated protect designed to statute For jurisdictions. by other rejected quently could a vendor thus minors overruled Supreme Court example, the Utah as a de negligence person's a such invoke favor of Loeb in in line with prior decision its when However, decided Vance fense. 99 system' 101 negligence comparative a juris negligence contributory Alaska was Court, in a discussion Supreme New Mexico doctrine statutes exceptional diction. 100 Loeb, reasoned rejected specifically contributory negligence in a effect more has fault comparative adoption legislative is an contributory negligence Many regime because situations." 102 apply in similar should Thus, liquor liability. defense absolute negli- comparative apply jurisdictions now negli contributory alcohol involving a minor's invoke could in cases gence licensee use. 103 Habili of civil absolving itself thereby gence, an intox minor or selling to a illegally
ty for
Summary
legislature's
adult, undermining the
icated
exceptional
an
04.21.020
designated
AS
We
gaining
ac
from
minors
preventing
intent
policy
precedent
light
in
statute
alcohol.
cess
(Del.1989);
914,
v. Sil-
Winters
916-17
A.2d
565
at 760-61.
id.
99. See
57
51, 53-54,
524, 797 P.2d
Haw.
Bar, 71
ver Fox
629, 703
Liquors,
(1990);
237 Kan.
Ling
Jan's
v.
id.
100. See
Larson,
731,
(1985); Craig
432
v.
735-39
P.2d
(1989);
v.
899, 904
Pelzek
346, 439 N.W.2d
Martinez,
996 P.2d
Mich.
v.
Flame,
Inc.
Red
See
323-
2000) (overruling
v.
321,
(Utah
Reeves
608, 463 NW.2d
540, 543-44
Legion,
Neb.
236
Am.
Ltd., 120
(1990);
Flobo
Reuter v.
1991)).
24
Enters.
(Utah
111
813 P.2d
Gentile,
(N.Y.App.Div.
67, 68
NY.S.2d
722, 503
A.D.2d
Water,
Inc.,
1986);
875 P.2d
v. Shooters
623,
Kirchner
117 NM.
Atler,
v.
Reichert
Coleman,
(1994);
v.
1026, 1029,
379,
Barth
see also
856 N.E.2d
708,
Ohio
381-82
167
App.3d
Champ's
(2006);
v.
(reaf-
rel. Meier
(1994)
Meier ex
1038
321-22
319,
P.2d
1, 878
NM.
118
).
605, 623
firming
Inc., 241 Wis.2d
Reichert
Grill,
&
Bar
Sports
94,
(2001).
101-02
N.W.2d
Club,
Country
in a case
ruled
See,
have not
jurisdictions
eg.,
v. Norwood
Tobin
Other
(1996);
a minor
of alcohol
involving
vendor's sale
627, 634
661 N.E.2d
126,
422 Mass.
Inc.,
213,
Peterson,
liability to a
219
So.2d
host's
368
a social
Munford,
v.
addressed
Inc.
have
but
153,
Inc.,
DMI,
a social
following
220 Mont.
(Miss.1979);
cases hold
v.
Bissett
minor.
Kerrigan,
negli-
545,
(1986);
148
comparative
v.
Steele
minor's
547
717 P.2d
can assert
host
liability
what-
(1997);
has no
Quail
host
v.
gence
that a social
685,
Busby
701
A.2d
1, 689
NJ.
1326,
147,
Club,
Marks,
1333-
Country
Ga.App.
P.2d
603
885
269
&
v.
Creek
Mowell
soever.
Golf
liability
702,
(2004) (holding
no
v.
(Okla.1994);
Uithoven
704
ex rel.
Spinna-
Cook
S.E.2d
34
Cope
934,
Inc.,
(West
938-39
§
878 SW.2d
Rivergate,
51-1-40
Aww.
construing
ker's
Grorcta
Konieczny,
Pa.
515
(Tenn.1994);
equally
v.
hosts
2007),
Matthews
to social
applies
which
(1987)
(citing Congini ex
111,
vendors);
508, 512
949 SW.2d
Bucher,
A.2d
106, 527
v.
Nisbet
negligence);
(comparative
157,
(Mo.App.1997)
Co., 504 Pa.
Valve
Congini
116-17
v. Portersville
rel.
(1983) (social
515,
can
host
518-19
A2d
662 A.2d
470
28,
140 NH.
Hickingbotham
Burke,
v.
fault));
v.
negligence
un-
(1995)
Schooley
minor's
assert
comparative
{comparative
301-02
297,
468,
Inc.,
Mkt.,
951
Wash.2d
134
law);
Deli
62 P.3d
Pinch's
v.
Daniels
Carpenter,
der common
Moulder,
negli-
183
749,
(1998);
v.
(comparative
555,
Anderson
(Wyo.2003)
756
P.2d
561-62
(1990).
These
gence).
61, 70-71
S.E.2d
77, 394
W.Va.
brought by
minor
case
in a
actions
not ruled
jurisdictions
cases include
Other
brought
a third
the con-
and actions
against
vendor
have considered
involving
but
a minor
involving
intoxi-
an adult's
against the vendor.
party
cases
fault
sumer's
Superior
Corp.
See,
v.
eg.,
E. Webb
vendor,
Del
cation.
either
jurisdictions,
some
584-86
580,
726 P.2d
164,
Ariz.
Court,
151
from
is immune
rule,
law
or common
statute
1250, 1259
Nasby, (1986); Lyons v.
injuries
to the sale
related
resulting
liability
Sunset
Dep't
v.
(Colo.1989);
Labor
Idaho
accordingly,
cases,
These
to a minor.
alcohol
1115,
1111,
207,
Inc.,
Marts,
P.3d
91
Idaho
140
departure from our
greater
an even
demonstrate
39, 46
Ryan,
(2004);
520 N.W.2d
v.
Cabrol,
Stewart
Cal.3d
Strang
v.
holding
Loeb. See
&
Rest.
Inn
(N.D.1994);
v. Timber
Fulmer
1013, 1016
P.2d
CalRptr.
413, 9
Or.
legislature
Lounge,
al-
Inc.,
(1984) (recognizing
Duenez, 237
(2000);
Operating Partners
to an
alcohol
F.F.P.
liability
serves
a vendor
if
lowed
(Tex.2007).
680, 689-90
minor);
S.W.3d
Megaw,
Oakes
intoxicated
obviously
*21
that
However,
existed
the time of Loeb.
plaintiffs'
against
award
Instead,
DelRois.
Alaska's most recent tort reform-rejecting
simply
court
noted each claimant's dam-
joint
liability
and several
enacting
and
pure
ages and imposed sixty-two percent of the
liability
several
in AS 09.17.080-changed
liability for these damages upon DelRois.
one of
policies.
these foundational
An exami
For example,
found that
the acci-
nation of this new statute convinces us that
dent caused
$380,000
Robert Walker
in dam-
exceptional
designation
statute
ages.
cannot
The court accordingly ordered Del-
coexist with
policy
the clear
underlying
AS Rois to
pay
Robert's
sixty-two
estate
percent
09.17.080. 104Our
jurisdic
review of
other
$330,000,
plus prejudgment
interest, even
tions supports our conclusion that
though
hold
the estate
already
had
received a
ing in Loeb is from an earlier
$518,760.96
era We
total of
from the settlements with
therefore hold that our earlier determination
Binghams.* 107
that AS 04.21.020 was an exceptional statute
argues
DelRois
superior
subject
not
comparative
negligence has
by
erred
reducing the Walker
and
superseded
been
by the
pure
enactment of
Vaughn plaintiffs'
against
award
by
DelRois
several lability.
the amount
the Walker
Vaughn
plaintiffs received in their settlement with
Superior
B. The
Court Did Not Err
Binghams.
DelRois relies on the com-
Refusing To Offset
the Walker and
mon
policy
law
precludes
plaintiffs from
Vaughn
Against
Plaintiffs' Award
receiving
recoveries,
double
quoting this
They
Amount
court's reference to "the common law rule
Received in Settlements
from Other
embodying
public
the sound
policy
permit-
Defendants.
ting
plaintiff
receive
the amount of
trial,
Before
the Walker and Vaughn his adjudged damages
more,
and no
regard-
plaintiffs settled their
against
claims
Raone
108 ®
less of the source of the recovery.
But
and Carl Bingham.
paid
Raone
the Walker we held in Petrolane Inc. v. Roble 109that
plaintiffs 105$533,206.69 and the Vaughn
against
"the rule
double recovery
ground-
is
plaintiffs' 106 ®$284,006.05.
paid
Carl
joint
ed in
and several liability" and does not
Walker plaintiffs $504,315.24and Vaughn
apply in the context
pure
several
liabili-
plaintiffs $312,897.70. Thus,
Binghams
ty.110 We reached this conclusion in part
paid the Walker
Vaughn
plaintiffs over
because AS 09.17.080mandates the court to
million
$1.6
plaintiffs
settle the
claims
judgment
"enter
against each party liable on
against them.
the basis of
liability
several
in accordance
ignored
this settlement with
party's
percentage of fault." We
when calculating the Walker
also relied
policy
reasons-encouraging
104. We also note that the current version of AS
Estate
Vaughn,
of Justin
Vaughn,
Donald
precludes
09.65.210
person
personal
or his
Vaughn.
Donna
representative
recovering
damages for his
personal
injury or
injury
death if the
or death
107. The Estate of Robert Walker
fifty
received
person
occurred while the
operating
a motor
percent
plaintiffs'
of the Walker
settlements with
vehicle while under the influence of intoxicating
Binghams.
liquor.
09.65.210(4)
(5).
See AS
Although
this statute became effective after this case ac-
Elbow Room, Inc.
Tommy's
v. Kavorkian, 754
crued and
case,
thus
apply
does not
to this
see
(Alaska 1988)
P.2d 243, 246
(quoting
Layne
§
ch. 26,
31, SLA 1997,
it too is inconsistent with
United
(Oth
States, 460
1972))
F.2d 409, 411
Cir.
continued treatment of AS 04.21.020 as an ex-
(internal quotation
omitted).
marks
ceptional statute.
C. of Andrew aware were Poirier, Dousette and Andrew the witness him on and included litigation locate However, to they were unable list. plaintiffs Vaughn and trial, the Walker At trial, which immediately before until him DuBois, Mi- testimony of Erie presented hired Vaughn plaintiffs and point the Walker Each Dousette. Poirier, Andrew and chael The find Dousette. investigator to private alco- purchased he had that testified witness immediately after DelRois notified plaintiffs underage and that while DelRois from hol witness. of each aware they became these him before not carded had DelRois they knew that testified They all purchases. scheduling original court's superior The Addi- minors. to sold alcohol that DelRois their submit parties to required order he that testified Dousette tionally, Andrew two by August lists final witness con- purchase Vaughn Justin witnessed date, trial the then-scheduled before months evening of the DelRois from alcohol sume allowed nevertheless superior court but accident. wit- late-introduced testimony these wit- each use of objected DelRois the Walker that found The court nesses. that Walker argued DelRois ness. have secured not could DelRois not notified had plaintiffs Vaughn had sooner witnesses important these trial, De- eve of until the witnesses these possi- as soon DelRois as notified diligently time insufficient it had that Rois contended not had DelRois noted that court The ble. superior The witness. each prepare to for a ground as a new witnesses used and allowed objections these overruled court and concluded motion continuance testify. to witness each did not witnesses of these late introduction it had argues that again appeal DelRois On DelRois. prejudice significantly Addi- these witnesses. notice insufficient steps to further took superior court testi- argues that now tionally, DelRois might these witnesses any prejudice mitigate inadmissible. witnesses these mony of to DelRois It allowed DelRois. caused had abuse the court not after did witnesses these recall op- DelRois permitted It them. allowed it dismissed when discretion its DuBois, pri- Michael testimony Eric the witnesses speak to portunities Dousette. Poirier, and Andrew cross-examination. vately before informa- discovering DelRois assisted also The Walker the witnesses' impeach might use it tion intent their notify DelRois unable were for crimes as convictions credibility, such Poirier, and DuBois, Michael Erie present court stated Finally, the dishonesty. eve until witnesses Dousette Andrew DelRois motions entertain would trial, Eric At trial, February show could if DelRois attorney's fees for Robert he worked explained DuBois caused witnesses of these tardy introduction William, inform father, and did Walker's expense. additional experience February 10 of his until William pages 1155- 09.17.080(d)-as we hold supra at 1020-21. Petrolane, defendant established 56-Petrolane pay not have should defendant as a Just AS under share calculated its than more *23 appeals superior DelRois court's deci- court reasonably found that the danger of sion to allow these witnesses to testify. surprise prejudice to DelRoiswas small.119 Vaughn plaintiffs Walker and Moreover, answer explained above, the court took the trial appropriately court considered the steps to any prejudice minimize might costs and benefits of allowing have occurred. testify. It also found that the wit- them to nesses provide probative would testimony for review a We trial court's decision the Walker Vaughn plaintiffs and regarding depart pretrial to from a discovery schedule the likelihood that alcohol from DelRois was for an abuse of discretion. 114We also review consumed on night of the accident and for abuse of discretion a trial court's choice the witnesses could not have been se- particular of a sanction discovery for a violation. greater cured with diligence. 115 reasons, For the same DelRois's alterna- The Alaska Rules of Civil pro- Procedure argument tive superior that the court erred process by vide the parties which notify each by not precluding the testimony of witnesses other of witnesses that they pres- intend to introduced in violation of discovery its order ent rules, trial Under these the trial also fails. Civil grants Rule 87 courts broad establish deadlines after which discretion to fashion remedies for discovery parties generally may not add new wit- violations, order including option of ex- 16(e) nesses. 116Civil Rule states that courts cluding procured evidence in violation of a may only modify these prevent deadlines to discovery order. 120In fashioning such reme- injustice." "manifest dies, Rule 37 commands courts to consider Trial courts are afforded broad the nature severity violation, discretion to determine whether a situation prejudice to the opposing party, any entails injustice" a "manifest sufficient to other factors it appropriate. deems Preclu- justify departure pretrial scheduling or sion of witness testimony is a remedy, harsh ders 117 In making determination, such a appropriate only if noncompliance is severe courts should factors, consider several includ or willful. 121 explained above, As superi- ing prejudice to the opposing party, or court appropriately preju- considered the importance of the evidence to party seek DelRois, dice to importance of the testi- ing it, to introduce and whether party mony, and the diligence with which the could have diligently more obtained that evi Vaughn Walker and plaintiffs procured these dence with earlier notice. 118 witnesses. After reviewing the record as a whole and 2. The content of testimony analyzing did the factors relevant to manifest not create reversible injustice, error. we conclude that did not abuse its by discretion deviating from The Walker Vaughn plaintiffs used the pretrial
its
witness order.
The superior
testimony
DuBois,
of Eric
Poirier,
Michael
permitted
should not be
pay
to
less
plaintiffs'
than its
presentation of these witnesses on such
share.
trial,
short notice. At
appeared
DelRois
to con-
sent
to the admissibility of
testimony
their
City
McLean,
1309,
v.
Kotzebue
702 P.2d
prove
provided
that it
alcohol to minors.
(Alaska 1985).
1316
120. See
v. Melba
Mining,
Sykes
Creek
Inc., 952
Hughes
(Alaska
Bobich,
Auto.
Campbell,
422-24,
Ins. Co. v.
538 U.S.
131. Cummins,
Inc. v. Nelson,
130. The Walker and plaintiffs argue for each decedent. One line on the form any DelRois challenge waived jury damages instruc- discussed post-trial for enjoy- loss of by failing tions object trial, to to them at but this ment of life. Another line included enjoy- loss of argument largely is without merit. We discuss ment of life in a damages list of cap- under the this applicable. issue below when past tion of non-economic loss. by in- erred superior 2. The challenges to its reasserts now DelRois jury it could structing form. verdict special instruction damages nonpecuniary to award "(there no loss can be argues sister, Rhonda. death, that is some- Robert Walker's life after enjoyment of experience." can living person only a thing instructed plaintiff "compensate each jury that it could from results death plaintiff's aWhen grief that sorrow, mental distress conduct, AS tortious defendant's because will suffer or they have suffered through a 09.55.580(a) plaintiff, allows Walker Robert Jason of the death a claim to assert representative, personal attorney Vaughn." DelRois's Daniel Justin "damages any to recover wrongful death bela want to stating that "I don't objected, just." fair and may consider or the court make sure this, just want I but bor wrongful only creates The statute Rhonda Walk object I reflects record action, regulates also but cause death response, the here." being included er Subsection may award. 136 a court stated, permitting "I'm superior court damages recoverable (a) clearly limits the I testimony that heard." on the based dependents without a decedent estate $100,000 her Rhonda for jury awarded the decedent damages: "When pecuniary resulting her brother's harm emotional other or children spouse no survived is death. be shall recovered amount dependents, *26 property personal as other administered wrong- argues that appeal, DelRois On peeuni- limited be but shall decedent the dies with- the decedent where death cases ful '137 had neither decedent Because ary loss." parents permits dependents, Alaska out 09.55.580(a) limited AS dependents, 138 any harm. damages for their emotional to recover pecuniary estates recovery of the law does that Alaska agree parties Both loss intangible include harm, not does which sib- nondependent a recognize expressly not enjoyment of life. 139 damages nonpecuniary recover Ting's right to for both the awards holding, of our light As described case. wrongful death in a loss for non-economic future past and wrongful death a above, providing the statute Vaughn and Justin Walker of Robert Estates 09.55.580, permit action, does AS cause of future for The awards vacated. must be harms where nonpecuniary any recovery of for the dece purely were loss non-economic dependents. without dies the decedent While of life. enjoyment loss dents' statutory prohibition, Despite this in loss non-economic past for instructions we argue that and Walker considerations-for permissible some cluded cause law new common create a under should suffering pain example, pre-death vie- wrongful death siblings of 140-these for the AS 09.55.570 action statute survival Vaughn decline Walker tims. We in because sustained cannot be awards new cause to create invitation plaintiffs' imper assessment also allowed struction broadly 09.55.580 Statute Alaska action. enjoyment of for the loss damages missible by the may be had recovery that governs life. actually who is as one poses 09.55.580 of AS Int'l, Bell Helicopter See Hanebuth
136. support at the 1984) for (Alaska (observing upon decedent 143, dependent that 145-46 P.2d children). wrongful death in Alaska for of action the cause death, such spouses of his time law). not common statute, created was Buoy Vaughn plaintiffs cite Walker and 09.55.580(a); Taylor v. Se.-Harrison AS of. (Alaska 1985) (Alaska Inc., Til ERA Helicopters, Corp., 1161-62 694 P.2d W. Buoy is 1989) But conclusion. Act re- to contest Compensation (noting the Workers' that injury personal legislative determination it involved inapplicable because a reasonable flects require dependents of decedents estates at See id. wrongful death suit. suit, not decedents estates of compensation than greater dependents). without challenge award to this discuss DelRois's We Pushruk, Estate In re 138. See pages 1165-66. pur- 1977) (defining "dependent" for infra wrongful assert an victim of a death Also, NIED claim. 144 his close widely courts unambiguously relatives. It nondepen- bars siblings hold that of the accident victim are siblings dent from recovering nonpecuniary sufficiently closely related to assert NIED damages 141 09.15.010, Alaska Statute which claims. 145 nondependent parents allows of a wrongful Here, Rhonda arrived at the seene of the death victim to recover nonpecuniary dam- accident in time to view her brother's dead ages, exception 09.55.580, is an to AS but it body. trial, At Rhonda testified as follows: apply siblings does not wrongful of a death Q. you say Did police up? showed Thus, victim. the Alaska statutes do not Yeah, A. at 6:00 in morning. And allow nondependent sibling of a wrongful they told me they needed to talk to death victim to wrongful assert a death claim my parents. I my parents, So told you nonpecuniary harm. 142 know, they were they there and were my there about Walker and brother. plain And I went argue
tiffs also Rhonda had a the bathroom viable when I up they came were-my claim for mom negligent screaming was infliction of and erying emotional dis (NIED) and I didn't on, tress know what going and thus was the superior they told me that gone he had into an properly allowed her to collect accident and he died. her emotional harm. DelRois acknowl edges that them, Rhonda And I didn't believe had a viable so we went to NIED claim. A accident. negligent And top defendant from the breach of the hill you all es the could standard of see was care two plaintiff owed to a bodies covered in yellow tarps. who suffers And down, emotional harm when we after walked witnessing I was physical standing my over harm to her brother and I loved ones if three didn't (1) know it was They him. conditions are met: wouldn't let plaintiff was lo us look at him. (2) cated near accident; the seene of the All I emotional harm could directly resulted see was his from ob shoes. He was side, serving his accident, the seene of his left side. rather And Justin than *27 later; (8) under learning of it the other tarp and plaintiff the and all I could and see victim was blood all closely were around related. 143 where his We head have re would be. peatedly held that plaintiff the need not actu
ally witness the accident and that merely
She also testified that she suffered emotional
witnessing
injured
an
or
family
dead
member
result,
harm
aas
stating, "I know it has an
at the scene of the accident is sufficient
impact
me,
to
on
because I
nightmares
have
09.55.580(a),
141. AS
Gillispie
claim);
v. Beta
Room,
Constr.
Tommy's
1040,
Elbow
727 P.2d at
(Alaska 1992)
Co., 842 P.2d
("'When
1272, 1273
(holding
1043
plaintiff
a
that
who arrived at the
the decedent
is not survived
scene of a car accident in time
the
by dependents,
daugh-
to find his
recovery
loss.").
statute limits
pecuniary
injured
ter
being
and
removed from the car
claim).
could assert an NIED
Mattingly
But see
Napolilli,
242,
Coll.,
Nickels v.
356,
29
Sheldon
Jackson
743 P.2d
Cf.
365-66
(Alaska 2001)
(Alaska 1987)
("[The
(affirming
rejection
remedies
the
offered
of an
the
compensation
workers'
supersede
statute
any
plaintiff
NIED claim where
away
was 150 miles
common law remedies outside
statutory
when he learned of the
injuring
accident
his son
scheme.").
and had no
sensory
"sudden
observation" of his
son).
injured
State,
143. Beck v.
Dep't
Transp. & Pub. Facili-
ties,
105,
(Alaska 1992)
837 P.2d
(quoting
Joseph
Annotation,
See Dale
Gilsinger,
Rela-
Elbow Room v.
Tommy's
Kavorkian,
727 P.2d
tionship Between Victim and
as
Plaintiff-Witness
(Alaska 1986)).
To
damages,
recover
Affecting Right to Recover Under State Law for
the
harm
plaintiff
suffered
the
as a result of
Negligent
Emotional Distress Due Infliction severe,
the shock must be
but it does not neces-
Witnessing Injury to
Bystander
Another Where
sarily need to
physical
result in
injury.
illness or
Is Not Member
Victim's Immediate
Plaintiff
Family,
Mackie,
Chizmar
201-04
(2002) ('The
621-22
relationship to the victim
consistently
has
been
adequate
bystander
held
for
recovery where the
144. See Beck, 837 P.2d at
plaintiff
(holding
is a member of the victim's immediate
109-10
that a
plaintiff
injured
who saw
daughter
her
"for that
is, where
family,
is plaintiff
victim's
first
hospital
time" in the
could
child,
assert an
spouse,
NIED
parent,
sibling.").
jury to award
for the
separate sections
may have had
Rhonda
it." Thus
over
damages
nonpecuniary
parents
decedents'
claim.
NIED
viable
periods
during the
their losses
representing
However,
instructions
court's
decedents would
after which
if Rhonda's
incorrect
jury were
jury ac-
majority. The
age of
"the
argues,
reached the
DelRois
As
NIED.
was
claim
$100,000
each of the
damages
cordingly awarded
grouped
...
form
verdict
special
of consortium
and loss
distress
loss dur-
nonpecuniary
emotional
for
for their
parents
four
jury
what
to determine
ing
period.
impossible
it is
so
subject to
award
awarded, making the entire
may
generally
parents
argues that
asserting
claims
NIED
Plaintiffs
reversal."
their child
the death of
damages for
recover
emotion
damages for their
only recover
of time before
period
only represent
view of
from a
results
if the harm
harm
al
majority. age the accident. 146
after
child reaches
soon
injured victim
plaintiffs answer
Walker
forms broad
verdict
Here,
special
the court's
the dece-
properly
allowed
Rhonda
superior
jury
to award
ly allowed
Loss," including "emotional
"Non-Economic
nonpecuniary dam-
parents
to recover
dents'
grief,
sorrow,
anguish and
distress,
mental
accident.
periods after the
time
ages for all
love,
comfort, care, guidance,
society,
argue that
loss
The Walker
assistance, companion
service
support,
damages
right to recover
parent's
limits on
distinguish
It did not
consortium."
ship and
child would
after the
of a child
for the death
view
resulting from
harm
emotional
between
majority are based
age of
have reached
scene
the accident
victim at
ing the
theory
parents have
the outmoded
loss
resulting from Rhonda's
harm
emotional
minor children.
earnings of their
right to the
of her brother. 147
09.15.010,
statute,
does
AS
The relevant
jury instructions
superior court's
for which
periods
time
clearly limit the
Rhon-
respect to
forms
verdict
special
may recover
children
of minor
parents
be-
erroneous
damages were
emotional
da's
damages. The statute
consortium
loss of
Rhon-
to award
permitted
cause
an
may maintain
parent
entitled
provides
"[a]
was not
she
damages to which
da
accordingly va-
of a child
the ... death
theory.
plaintiff
We
NIED
under an
action
have not
majority."
to Rhonda.
We
the award
age
cate
below
may in-
these
whether
addressed
by in-
erred
of time
periods
consortium
clude loss
*28
jury
structing
that
it could
the
majori-
age
reached the
child has
after the
damages
decedents'
to the
award
ty.149
loss of
representing
their
parents
period
suggests
after
09.15.010
the
AS
policy
for
behind
consortium
damages.
have reached
would
the decedents
recover such
may not
parents
that
majority.
age of
the
allow a
not
does
this statute
Indisputably,
from the
resulting
DelRoisg's
damages
to recover
parent
supe
objection,
the
Over
It
during adulthood.
who died
of a child
loss
provided
form
special verdict
court's
rior
we have
above,
Beck,
As
AS 09.15.010.
P.2d at 110-11.
explained
independent
provides an
09.15.010
that AS
held
jury
could
the
that it
instruct
court did
147. The
a wide
parents to recover
action for
cause of
"damages
dis-
for emotional
to Rhonda
award
of consor-
damages-including
loss
variety of
witnessing the
as a result
suffered ...
tress ...
their chil-
tium-stemming
deaths of
the
the
also instructed
But it
the accident."
scene of
Co., 842
Beta Constr.
See
dren.
Gillispie
"damages
Rhonda
award to
jury
it could
that
(Alaska
1272, 1273-74
relationship with her broth-
the
to the loss of
due
special
jury
nor the
instructions
the
er." Neither
1022, 1028
Hummell,
See
explained that Rhonda
Crosby
properly
forms
verdict
2003)
(declining
the issue
to reach
n. 23
theory
only
damages
under a
could recover
parents to recov-
allows
AS 09.15.010
NIED,
of whether
wrongful death.
not
chil-
their deceased
damages
periods after
er
challenge
NIED
to the
DelRois's
We consider
majority).
age the
have reached
would
dren
subpart below
instructions
would
to
parents
be anomalous
allow
matter,
whose
As an initial
appeal
DelRois's
children died while minors to recover
pertains only
loss of
this issue
jury's
to the
award to
damages
periods
consortium
during
the
parents,
decedents'
its award to
which
children would
explained above,
those
have been
Rhonda. As
adults
the statute
denying
recovery
parents
while
the same
does not
any
to
entitle Rhonda to
award of such
whose
died while
children
adults."150
Accord
damages.
Moreover
appeal
DelRois's
on this
ingly,
superior
by
issue is
only
the
court erred
relevant
instructing
to awards under AS
jury
09.15.010
wrongful
statute,
the
it could award
and the
death
decedents'
AS
Accordingly,
09.55.580.
award to Rhonda
parents nonpecuniary damages
representing
is irrelevant
during
periods
appeal
losses
DelRois's
after which
on this
issue.
would
decedents
age
reached the
regard
With
remaining
challenged
majority.
awards,
argument
DelRois's
unpersuasive.
is
As the Walker
Vaughn plaintiffs note,
superior
4. The
court did not abuse DelRois has
any particular
waived
objection
its
instructing
discretion
to an award for loss of the
"sup-
decedents'
jury that
it could award the dece-
port" or "service"
parents
to the
by not
parents damages
dents'
compen-
making an objection on the record. Accord-
sate them for a loss of the dece-
ingly,
only
we
superior
review
special
court's
"support"
dents'
and "service."
verdict
plain
form for
error. 151Even if Del-
superior
instructed the Rois had
objection,
not waived its
it is not
jury that it
parents
could award the
of Rob
clear that the inclusion of these two addition-
ert
Walker and Justin
a number of
types
al
of damages caused
any prej-
DelRois
types of non-economic damages,
udice.152
special
including
verdict form allowed
loss of the
"support"
decedents'
and "ser
jury
personal
award each
plaintiff only
special
vice." The
verdict forms instructed
"Nomn-Economic Loss."
examples
As
jury
similarly. However,
Loss,"
verdict
"Non-Economic
the form listed sever-
provided only
forms
spaces for the jury to
possible
al
categories
losses,
including
general
award
non-economic damages;
it did
distress, sorrow,
"emotional
mental anguish
not differentiate
categories
between
of non-
grief,
society, comfort,
loss of
care, guid-
damages.
economic
Accordingly,
jury
ance,
love, support,
assistance,
service and
awarded
non-economic
to each par
companionship and consortium."
"Support"
ent without specifying
particular
non-
"service" are
two of the fourteen
economic losses for which it intended to com
examples of non-economic damages given by
pensate
parent.
form,
and the form does not state that
these examples are exhaustive.
Further-
DelRois claims
more,
quite
these are
general examples;
it is
erred
instructing
it could
not clear how different a
"support"
loss of
is
award damages for lost "support" and "ser-
from a loss of "companionship"
"guid-
vice"
plaintiffs.
argues
ance."
unlikely
It is
jury's
award
Alaska
permit
juries
law does not
to award
*29
would have differed had
superior
the
court
nonpecuniary damages for
"support"
lost
omitted these two examples of acceptable
parents
"service" to
of deceased children un-
categories
damages.
der a
society"
"loss of
theory. DelRois also
reiterates
its
point
earlier
wrongful
Moreover,
the
it would not have
legal
been a
statute,
death
09.55.5980,
AS
does
permit
error
superior
for the
to allow the
nondependent plaintiffs to
any
recover
pecu-
jury to award pecuniary damages to the
niary damages.
parents of the
supported
decedents if
by the
only
The statute
creates a cause of
object
action for
jury
trial,
fails to
to a
instruction at
this
parents
injury
"for the
or death of a child below
challenge
will review
only
the
plain
for
age majority."
the
AS
{emphasis
09.15.010
error).
added).
Co.,
Equity
Jackson v. Am.
Ins.
90 P.3d
Cf.
151. See Cummins,
Inc. v. Nelson,
whether jury find for could that a reasonable nation Dr. deaths. before their but their accident making such a determina either side. 155 boys died within testified that Fallico light in the tion, view facts should courts Howev- the accident. or minutes of seconds party in favor of sub to the favorable most not tell whether er, that he could he stated jury. 156We review mitting the issue period and during this unconscious they were of dis only for abuse a determination such they suffered whether pain, no thus felt explained, previously As we cretion. 157 greatly. these two standards the combination jury that court instructed successfully litigant to for a makes it difficult dam- estates the decedents' it could award to submit decision challenge a trial court's any pain the dece- compensation ages as stan jury: deferential "The question to special they died. The before suffered dents standard and the substantive review dard of gave the superior court form that the verdict a difficult [appellant] give the combine similarly. The them jury instructed superior court convincing that the us task $10,000 for the dece- each estate awarded application of discretion." abused its pre-trial loss suffering and pain and dents' here com of review standard plain error of life. enjoyment appeal. challenge for DelRois pounds the standards, we that the DelRois claims this combination appeal, Given On within superior court acted submitting conclude erred superior court Barnes, 139 P.3d 156. See Pederson at 1273-74. 153. See Gillispie, *30 2006). (Alaska at 541. Inc., 115 P.3d Cummins, 154. See at 825. Peters, 97 P.3d 157. 822, 828 Peters, 97 P.3d Bethel 155. See City of 2004) superior (Alaska (holding court that the question whether Id. at 828. have withheld should disfigurement only if plaintiff suffered severe had plaintiff juror that the could find no reasonable disfigurement). severe suffered range permissible
its of discretion when it DelRois jury claims that instructions jury allowed the to determine whether special and verdict form legally were inade- dying. decedents had suffered before Dr. quate instructions on the requirements for an evidences at least a rea- NIED claim. Specifically, testimony Fallico's argues possibility sonable that the decedents suf- the court failed to instruct jury Further, dying. jury fered before had an damages, emotional such suffering as mental opportunity to review the evidence concern- psychological injuries, and must be severe to ing injuries. the nature of the decedents' be through recovered an NIED claim. evidence, jury
Based on this apply could knowledge its collective experience and matter, As an initial DelRois has question momentary suffering. objection waived making it at case, any trial. superior court in However, despite our determination that jury structed the that it compen could erroneous, this instruction was not the award sate plaintiffs for severe or serious emo damages pre-death pain for cannot be tional damages incurred witnessing the stated, sustained. As already we have jury accident seene. In instructions 28 and $10,000 past awards of non-economic losses superior jury instructed the to the Estates of Robert Walker and Justin "damages could award for emotional Vaughn must be they vacated because in- they distress that have suffered or will suffer enjoyment clude loss of damages. 159 life aas result of witnessing the scene of the Then, accident." jury instruction challenge DelRois's to the NIED superior court jury instructed the as follows: unavailing. instructions is The term "emotional distress" means superior jury allowed the emotional distress which is severe or seri- to award Robert parents, Walker's William ous. Severe or serious emotional distress Donna, sister, and Rhonda, 160 and Justin may be found where a person, reasonable Vaughn's father, Donald, damages emotional normally constituted, would be unable to they had incurred viewing after adequately cope with the distress caused accident, scene of the under an NIED by the circumstances of the case. Exam- claim. 161 court instructed the ples of serious emotional may distress in- jury that it could award the Walkers and neuroses, clude psychoses, chronic de- Vaughn Donald damages for the emotional pression, phobia, post traumatic stress they experienced distress as a direct result of disorder, However, and shock. tempo- witnessing the scene of the accident. The rary fright, disappointment, regret do special verdict provided form also place for not suffice as severe or serious emotional jury to award the Walkers and Donald distress. loss, such non-economic although it distinguish did not between those suffered as This repeats instruction nearly verbatim lan- Chigmar a result of witnessing the accident seene guage discussing Mackie' 162 damages suffered as a result losing requirement damages emotional must be family member. jury awarded each of severe to be recoverable in by- an NIED these damages for their non-eco stander such, claim. 163As the instructions nomic losses. legally are adequate. supra pages See 1160-61. The award for Witnesses of accidents in certain cir- past non-economic loss to the estates included: damages cumstances recover resulting emo- "pre pain suffering death including terror through tional harm a claim for NIED. Beck v. fright, and emotional anguish distress and State, Dep't Facilities, Transp. & Pub. death, impending post enjoyment death loss of (Alaska 1992). life, to time of trial." above, explained
160. As
challenge
NIED
is
162.
7. The re- in its instructions
plain error stated: For the reasons of present value garding the (1) claims dismissing the judgment The economic dam- future awards is affirmed. of Alaska against the State ages. (2) in fa- judgment against DelRois jury to the 25 allowed Jury instruction is vor of the Walker damages economic future each estate award modified it should be On remand vacated. special ver present value." "in of sums fault thirty-five percent to reflect DelRois's jury to award similarly allowed the form dict accident. for the that the indicate did not damages, but such (8) In addition: present val to to be reduced damages were of Robert the Estate jury awarded ue. (a) Walk- Estate of Robert As to the of Justin $300,000 the Estate Walker modify er, the court should on remand for the dece $400,000 compensate to the ver- by deleting from judgment DelRois claims earnings. future lost dents' $10,000 include of that awards dict both failing to by erred superior court that enjoyment of component for loss it any amount jury reduce to instruct life.
(a) The Estates oped as to have left the old rule no more than are entitled to a new trial on pre-death their claims for pain doctrine, a remnant of abandoned [or] facts 09.55.570; suffering under AS changed have so or come to be seen so differently, as to (b) have robbed the old rule of Rhonda Walker is entitled to a " 4 significant application. new trial on her claim negligent in- fliction of emotional distress. The court concludes that Loeb has been superseded by PART, AFFIRMED IN enactments of AS VACATED IN 09.17.060, PART, which system codified our and REMANDED of com- pro- further parative negligence, 09.17.080, ceedings. and AS which system
instituted our
pure
lability.
several
FABE,
The court
Justice,
liquor
states that
vendor
Chief
de-
whom
in
CARPENETI,
fendant
Loeb
Justice,
rely
was "unable
joins,
on" these
dissenting.
tort
reform statutes because the claims in
FABE,
Justice,
Chief
with whom
that case arose before these statutes were
CARPENETI,
Justice, joins, dissenting.
enacted. 5 But
the Loeb court specifically
Today
effectively
the court
overrules
policy questions
its
addressed the
by
raised
Rasmussen, 1
decision in Loeb v.
comparative
which held
negligence,
subsequent
and the
liquor
that a
licensee
adoption
"is not entitled to as-
of a
pure
scheme of
liability
several
has not "robbed
sert
comparative
significant
[Loeb] of
fault of the
applica-
minor/con-
sumer,
in an
action for
resulting
tion" or rendered it "no more than a remnant
from the unlawful sale of intoxicating li- of abandoned doctrine."
quor." 2 Because the issues that
the court
Comparative
negligence
judicially
grapples
already
with were
addressed and
adopted long before
arose,
the Loeb claims
Loeb,
decided in
I
because
do not believe
and the Loeb court
specifically
also
ad-
high
that the
threshold for overruling settled
dressed its codified version. 6 The Loeb court
precedent
met,
has been
I would adhere to
concluded that AS 09.17.060was "not at all
Loeb and affirm
court's decision
inconsistent
past decisions,
with our
holding
to hold
liquor
store liable for the de-
the laws prohibiting the sale of alcohol
ceased minors' share of the fault for the
to minors
obviously
persons
intoxicated
accident.
are
place
intended to
responsibility
entire
Stare
requires
decisis
that we "overrule a
for subsequent harm on the violator."" 7 In
prior
decision
clearly
when
convinced other
words,
the Loeb
specifically
re-
originally
rule was
jected
erroneous or is
argument,
made
the Loeb dis-
no longer sound
changed
because of
condi-
sent 8 court, 9
revived here
tions, and that
good
more
than harm would
adoption
comparative
of a
negligence sys-
result
from departure
precedent. 3
tem robbed AS 04.21.020 of its character as
We have
prior
stated that "a
decision
exceptional
be
an
statute,
policy
which for
rea-
abandoned because of 'changed conditions' if
sons confers extra liability on a
li-
licensed
principles
'related
of law have so far
quor
devel-
vendor when harm results from its ille-
(Alaska 1991).
1.
1169 Loeb fendants. to have appears minor. The court to a The Loeb alcohol of gal sale adoption pure of several the assumed that compe- not are that "children reasoned court change outcome of way liability not the meaningful the would any in assess tent assumption this I believe that such a case. alcohol" and use of in the involved risks to ex- might be "able vendor liquor a while was correct. by selling alco- competence" of this lack
ploit liability does pure several adoption minor, legitimate rea- was no there to a hol the Loeb deci- rationale behind not alter the further, it exploit "to allow the vendor son to the outcome of should not alter sion and thus plaintiff reduced liability to the having its pure Adoption of a scheme this case. the to exercise failed minor] [the because liquor a vendor lability ensures that several safety rea- her own of care for degree same damages in all held liable for cannot be assess more able to one sonably expected of fault, multiple actors are a situation where [the used risks, purchased and she when involving a in a case drivers such as other 10 reasoning This product." liquor vendor's] accident, or the Cancels car multiple-vehicle applicable today and is as strength its retains But case. Binghams in the instant and the in Loeb. it was case as in this fllegal- where, here, liquor single a vendor as the effect addressed Loeb court While intoxi- minors who became ly aleohol to sold negligence comparative adoption of Loeb ex- irresponsibly, and acted cated the sale of alcohol involving cases had on liquor to hold ception continue should minorg' minors, specifically address not did intoxicated for the vendor liable liability. adoption pure several effect in to accommodate fault order share of the to do no need there was It determined compe- are not judgment that "children our multi- involve "[did] that case because so way the any meaningful in tent to assess 11 14 explain on to It went ple defendants." If of alcohol." in the use risks involved a might complicate "[mlultiple defendants negligence system comparative adoption of a brings ac- injured party third an when case exception poli- and the this not eliminate did liquor minor and the against both tion it, pure adoption of sev- reasoning behind cy licen- licensee, liquor one more than or when it either. Hability not eliminate should eral the minor with unlawfully provided has see recognized that there The Loeb in this recognizes the court liquor.12 As law" in authority in area of this "split a Hability case, pure several adoption of concluded jurisdictions and nonetheless other attrib- for harm total fault that "of the means existing comports with holding "best that its the claimant-the utable to defendants-not 15 The public policy." and sound Alaska law judgment against each a shall enter represents today that "Loeb now court states per- own only for the defendant's defendant represented But Loeb minority view." here, in But as fault."1 centage of the total decided. time it was minority at the view minors are Loeb, the deceased the estates of law in Alaskan grounded was a decision Loeb defendant, only one only claimants the decisions adoption policy, not vendor, in the case. remains liquor other states. reasoning of is, precisely as it was the court issue before shop of dram the state court discusses Loeb, liquor vendor simply whether decisions jurisdictions whose four law in the by the reduced liability should be defendant's Florida, Iowa, Minneso- in Loeb: were cited minor claimants' of the intoxicated amount system ta, Florida retains liability and Louisiana. not how negligence, comparative As to Loeb's.17 Habilitysimilar shop of dram multiple de- between apportioned be should 15. 1d. at 919. Loeb, 822 P.2d 10. Op.at 1153. 16. n. 15. Id. at 920 Inc., Booze, Abbey & Rd. 17. See Booth Id. Beef (Fla.Dist.App.1988). In Flori- So.2d Op.at 1150. liability da, based exposed to liquor vendor is sale was if the illegal a minor sale to on an distinguishes Florida "willfully," which Loeb, made at 919. decided,
was the case when Loeb was out, Iowa points the court liquor "cause[ ] the comparative apply negligence does not provider provide insurance for all of the shop liquor dram actions and holds vendors minor's conduct after furnishing alcohol" entirely for the liable actions intoxicated illegally, liquor vendor quite easily can patrons illegally. 18 sold who were But avoid shouldering responsibility by con- *34 by parties.19 Towa allows suits innocent sistently checking identification refusing shop The dram statute in Minnesota now to furnish aleohol to minors. language specifically contains limits the reasons, For these I respectfully dissent. liability liquor compara vendors based on negligence tive or related principles20 -the
type language shop Alaska's dram statute decided,
did not contain when Loeb was today.
still does not contain Though ap no
pellate issue, court has addressed the Louisi ana does changed seem to have course since
Loeb, notes, 21 as the court apparently decid ing adoption comparative of a negligence Alaska, Appellant, STATE of system liquor should reduce a vendor's liabil ity by the amount of an intoxicated minor's comparative fault. precisely But this is CAMPBELL, David Appellee. Scott rejected. 22 conclusion that Loeb These de No. A-9729. velopments in a handful hardly of states con general stitute "a erosion support" for Appeals Court of of Alaska. reasoning. 23 Loeb or its Loeb remains a minority position, grounded in Alaskan law 19, Dec. 2008. policy, as it was at the time that it was decided. significant Thus no "changed condi 24 tions" exist justify overruling it.
Finally, the simply has not addressed good
whether "more than harm would result 25 from departure precedent." from I am
not convinced that good more than harm
would result reducing consequences by
faced liquor illegally vendors who sell
aleohol to minors. While the may, Loeb rule law from § Alaska law. Fra Stat. anm. 768.125 20. (West 2004) § See Stat anm. 3404.801 (West 2005). However, a "willful" sale (providing to a shop that dram subject actions are minor can be established comparative circumstantial negligence); evi- VanWagner v. Matti- relating son, dence apparent 75, age. minor's See (Minn.App.1995) N.W.2d (recog- nizing legislature Gorman explicitly Albertson's, Inc., has 519 So.2d made Thus, (Fla.Dist.App.1988). practical shop subject dram comparative actions negli- difference gence). between Florida's "willfuiness'" re- quirement immunity liquor Alaska's ven- "good dors who conduct a Op. faith" identification 21. at 1153-54.
check be small. $22 22. P.2dat 918n. 8. Slager 18. v. HWA 435 N.W.2d Corp., 349, 358 (Iowa 1989). Op. at 1153. Id. at 351-52. Some other states also do not 24. Pratt & Canada, Inc. v. Sheehan, Whitney liquor reduce a liability by vendor's the amount (Alaska 1993). patron's of an intoxicated comparative negli- gence, providing Loeb, support some but also Id. do not allow patrons suits intoxicated them- eg., See, selves. Aanenson v. Bastien, Op. at 1151. (N.D.1989). N.W.2d 152-54 notes DelRois value. present to awarded (b) Vaughn, Estate of Justin As to the 09.17.040(b) finder to requires a fact that AS modify the court should remand the on damages present to future economic "reduce the verdict by deleting from judgment by parties to agreement an absent value" $10,000 that include awards both Bequliew El-liott. adopted rule apply the enjoyment of life. loss of component for Walker, (c) judg- to Rhonda As is vacated. ment objection make this did not Walker, (d) will be the instruction and Donna and therefore at trial As William modify that their We note should plain error. the court on remand reviewed post-majority by deleting judgments jury 25 indicated jury instruction damages of damages present of non-economic awards economic reduce should $100,000 judgment. in each ("economic found ... is to be loss value value"). con therefore We present sums (e) Vaughn, Donna Donald and As to to be argument DelRois's strue modify their court should on remand "about inadequately instructed deleting post-majority by judgments present reducing award inflation and damages of non-economic awards damages," to future respect value with $100,000 judgment. in each value. present gave no instruction attor (4) of interest The awards the instruc to conclude are unable We remand On are vacated. ney's fees plain amount to inadequate as to tion was so as re modify awards these court should conveyed idea The instruction error. judgment changes to by the quired calculated damages to be were economic by opinion by this mandated amounts If DelRois wanted present value. in terms new trial. 165 partial the result for calculat detailing a method an instruction jury in- (5) proper under remand On value, requested it should ing present structions: one. held, a new Elliott, partial trial is opinion new and a 09.17.040(b)-(c); Beaulieu v. AS 164. See judg- on this 1967) Based (holding judgment be entered. trier will an earnings to seek with- entitled "compute future will be loss of ment fact value"). 82(b) (c) present Rule Civil out reduction fees under award of in the shown days the date after within ten challenging the award appeal DelRois's judg- the new of distribution certificate clerk's grounds mooted is attorney's timeliness fees on ment. the various After on the merits. our decision required modified are awards of