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Landers v. Municipality of Anchorage (4/26/96), 915 P 2d 614
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501; (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
STEVEN A. LANDERS, )
) Supreme Court No. S-6023
Appellant, )
) Superior Court No.
v. ) 3AN-91-7887 CI
)
MUNICIPALITY OF ANCHORAGE, ) O P I N I O N
)
Appellee. ) [No. 4343 - April 26, 1996]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage,
J. Justin Ripley, Judge.
Appearances: Robert D. Lewis, Anchorage, for
Appellant. Stephanie Galbraith Moore,
Assistant Municipal Attorney, and Richard L.
McVeigh, Municipal Attorney, Anchorage, for
Appellee.
Before: Rabinowitz, Matthews, Compton, and
Eastaugh, Justices. [Moore, Chief Justice,
not participating.]
RABINOWITZ, Justice.
I. INTRODUCTION
Steven Landers appeals the superior court's ruling in
limine excluding evidence of the sentimental and emotional value
of family photographs and videotapes. We affirm this ruling, but
remand for a new trial on the issue of damages for loss of the
photographs and videotapes based on the standard adopted in this
opinion.
II. FACTS AND PROCEEDINGS
Anchorage police officers requested and were issued a
search warrant after investigating an anonymous tip that Steven
Landers was growing marijuana at his residence in Anchorage.
State troopers and Anchorage police officers searched Landers'
residence and seized a large quantity of marijuana plants,
equipment used in drug production, and other personal property.
Landers was ultimately convicted of misconduct involving a
controlled substance. Landers v. State, 809 P.2d 424 (Alaska
App. 1991).
During the pendency of the criminal litigation, the
Municipality of Anchorage Police Department stored Landers'
personal property and eventually disposed of it without notice to
Landers. The items seized and disposed of included photographs
and videotapes. Landers alleged that the photos were personal
family pictures, pictures of girlfriends, and wedding
photographs, and that the videotapes were recordings by Landers
of events from his life.
Landers subsequently filed a complaint seeking damages
for the items of personal property seized and disposed of by the
Municipality. Landers based his request for relief on theories
of inadequate bailment, trespass, and conversion, and requested
injunctive relief. The Municipality filed a motion in limine to
exclude at trial any evidence of Landers' sentimental or
emotional attachment to any items of personal property disposed
of by the municipality. Following a hearing, the superior court
granted the motion in limine on the ground that sentimental or
emotional attachment "is so highly subjective as to amount to
speculation." Landers then filed a petition for review with this
court but the petition was denied. The matter subsequently went
to trial.
During trial, the superior court discussed the status
of the damages issue, stating the following:
THE COURT: . . . He does want return of
his videos, pictures, letters, and such, or
if they're not available, of course, their
money equivalent, and monetary equivalent's
fixed, right or wrong in this case, not at a
hedonistic level, but at a fair market value
level. Is that the shape of this case?
MR. LEWIS: Yes, Your Honor.
MS. GALBRAITH: Absolutely.
The court instructed the jury that if it finds "that the
defendant negligently retained or disposed of an item of
plaintiff's property [it] must determine . . . how much money
will fairly compensate the plaintiff for that item of loss."
With regard to damages, the court instructed the jury that the
proper measure of damages for Landers' unreturned personal
property is its fair market value at the time of seizure. Fair
market value was defined as "the amount a fully informed seller
would receive from a fully informed buyer in a normal, open
market sale." The court further instructed the jury that it "may
not award damages for plaintiff's sentimental[,] emotional, or
fanciful value of any property including photographs and
videotapes."
The jury awarded Landers $1.00 in nominal damages for
the loss of miscellaneous photographs and $25.00 in damages for
the loss of five videotapes. Since the jury's total award of
$771.00 was substantially less than the Municipality's prior
offer of judgment, Landers was ordered to pay costs and
attorney's fees. Landers now appeals.
III. STANDARD OF REVIEW
The issues presented in this case are questions of law
to which this court applies its independent judgment, adopting
the "rule of law that is most persuasive in light of precedent,
reason, and policy[.]" Guin v. Ha, 591 P.2d 1281, 1284 n.6
(Alaska 1979).1
IV. DISCUSSION
A. Did Landers waive his right to challenge the
superior court's ruling on the motion in limine by
failing to make an offer of proof?
The Municipality argues that Landers waived his right
to challenge the superior court's ruling excluding evidence of
the sentimental or emotional value of photographs and videotapes
because he failed to make an offer of proof. Under Alaska Rule
of Evidence 103(a)(2),2 an offer of proof is generally required
to preserve error based upon a trial court's ruling excluding
evidence. However, an offer of proof is not required in this
case because the evidence at issue was excluded pursuant to a pre-
trial ruling on a motion in limine.
In Agostinho v. Fairbanks Clinic, 821 P.2d 714 (Alaska
1991), Agostinho appealed the superior court's exclusion of
evidence pursuant to its ruling on a motion for a protective
order. On review, we noted that "[o]rdinarily, a party waives
its right to challenge exclusion of evidence unless an offer of
proof as to the substance of the evidence is made at the time the
evidence is excluded." Id. at 717. However, we held that where
the trial court had previously granted a protective order
forbidding admission of the evidence at issue, it is appropriate
"to look to the protective order rather than events occurring at
trial to determine whether the trial court could properly forbid
admission of the evidence." Id.
A motion for a protective order and a motion in limine
are functionally the same. Black's Law Dictionary 914 (5th ed.
1979). Thus, our holding in Agostinho applies to the present
case. Based on Agostinho, we hold that Landers did not waive his
right to challenge the superior court's ruling by failing to make
an offer of proof.3
B. Did Landers waive his right to challenge the
superior court's ruling on the motion in limine by
failing to object to certain jury instructions?
Although Landers only appeals from the superior court's
ruling on the motion in limine, the Municipality argues that this
appeal also involves Jury Instructions 11, 12 and 13. Landers
did not object to Jury Instruction 11, which states that the
proper measure of damages for the personal property in question
is the fair market value at the time of seizure. Nor did Landers
object to Jury Instruction 12 which defines fair market value.
Finally, Landers failed to object to Jury Instruction 13, which
informed the jury that sentimental and emotional value may not be
considered in awarding damages. Landers in turn argues that it
was not necessary for him to object to these jury instructions
because they were "the logical outcome of the court's ruling on
its Motion in Limine. When the court ruled that no evidence of
sentimental or emotional value would be allowed, the logical
outcome of this ruling was that instructions 12 and 13 would be
given."
Alaska Rule of Civil Procedure 51(a) requires a party
to object to a jury instruction in order to preserve the issue
for review.4 And generally, in the absence of a proper
objection, we will not review a jury instruction unless the
giving of the challenged instruction was plain error. Conam
Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153 (Alaska 1992).
Plain error will only be found when an obvious mistake exists
such that the jury will follow an erroneous theory resulting in a
miscarriage of justice. Id.
The Municipality cites us to no authority holding that
a party loses his right to challenge on appeal an adverse ruling
on a motion in limine by not subsequently objecting to a jury
instruction which reflects the adverse ruling. The case relied
upon by the Municipality, State v. Dupere, 709 P.2d 493, 498, n.5
(Alaska 1985), is unlike the present case as there were no
rulings on pre-instruction motions challenged on appeal.
Similarly, Brown v. Estate of Jonz, 591 P.2d 532, 533-35 (Alaska
1979), cited in Dupere, is distinguishable because, viewing that
case most favorably to the Municipality, it involved an informal,
off-the-record decision by the trial court which was later
reflected in the court's instructions to which, in turn, no
objection was made. As we noted in Brown, "the trial court needs
an identifiable opportunity to rule on a party's position." Id.
at 534. Such an opportunity existed in the present case in the
form of the motion in limine. We thus reject the Municipality's
contention that Landers waived his right to appeal the ruling on
the motion in limine by failing to object to certain of the
court's jury instructions.
C. Did the superior court err in excluding evidence
of the sentimental and emotional value of photographs
and videotapes?
The question of whether the superior court erred in
excluding evidence of sentimental and emotional value depends
upon the appropriate standard for measuring damages for loss of
items of personal property such as family photographs and family
or personal videotapes. There appear to be three different
standards currently employed by courts for measuring damages for
loss of personal property. The first standard is the fair market
value of the property at the time of loss. See State v. Stanley,
506 P.2d 1284, 1292 (Alaska 1973).5
However, a number of courts6 and the Restatement
(Second) of Torts7 take the position that fair market value is
not an appropriate measure of damages where the property has no
market value, or where the value of the property to the owner is
greater than the market value. For example, the Restatement
(Second) of Torts ' 927 states that where a person is entitled to
judgment for the conversion of a chattel or destruction of an
interest in a thing, that person may recover the value of the
subject matter. Section 911(1) of the Restatement (Second) of
Torts defines value as "exchange value or the value to the owner
if this is greater than exchange value."
Thus, the second standard for measuring damages for the
conversion of a chattel or destruction of an interest in a thing
is the value of the property to the owner. This standard applies
where the destroyed or lost property has no real market value or
where the value of the property to the owner is greater than the
market value.8 Restatement (Second) of Torts ' 911, comment e
states that "[t]he phrase 3value to the owner3 denotes the
existence of factors apart from those entering into exchange
value that cause the article to be more desirable to the owner
than to others." Section 911, comment e includes family
photographs among those articles which "give enjoyment to the
user but have no substantial value to others."9 This same
Restatement comment further states that "it would be unjust to
limit the damages for destroying or harming [these] articles to
the exchange value."
The value to the owner is the value based upon actual
monetary loss resulting from the owner being deprived of the
property. A number of courts have held, and the Restatement
(Second) of Torts takes the position, that this does not include
"any sentimental or fanciful value."10 Rather, value to the owner
may be based on such things as the cost of replacement, original
cost, and cost to reproduce.11 To this effect, Restatement
(Second) of Torts ' 911, comment e states that if the subject
matter cannot be replaced, "as in the case of a destroyed or lost
family portrait, the owner will be compensated for its special
value to him, as evidenced by the original cost, and the quality
and condition at the time of loss." In applying such a standard
to the present case, damages for the loss of the photographs
would include the cost of purchasing and developing the film,
while damages for the loss of the videotapes would include the
cost of purchasing the blank videotapes.
The third standard applies where the property has its
primary value in sentiment. In this situation the proper measure
of damages is value to the owner including sentimental and
emotional value.12 This standard has been adopted by a minority
of jurisdictions. In fact, only one case in which a court
adopted this standard to measure damages for loss of family
photographs was cited to us. In Bond v. A.H. Belo Corp., 602
S.W.2d 105, 106 (Tex. App. 1980), a newspaper reporter lost
Bond's photographs, newspaper clippings and birth certificates
which she had accumulated over time and which could not be
replaced. The court held that sentimental value could be
considered in calculating damages.13 Similarly, in Campins v.
Capels, 461 N.E.2d 712 (Ind. App. 1984), the court held that
sentimental value could be considered in determining the value of
rings which Capels had received over the years as awards for auto
racing.
In Richardson, we considered a claim for mental and
emotional suffering arising out of the destruction of a pet dog.
Richardson, 705 P.2d at 456. We held that such recovery is
limited to situations in which the trial judge makes a threshold
determination that the severity of the emotional distress and the
conduct of the offending party warrant a claim of intentional
infliction of emotional distress. Id.14 Likewise, in Murray v.
Feight, 741 P.2d 1148 (Alaska 1987), we upheld a jury's award of
damages for mental and emotional distress arising out of the
interference with personal property. Id. at 1159-60. However,
we held that recovery for emotional distress resulting from
interference with chattels should be included within the general
recovery for intentional infliction of emotional distress. Id.
at 1160. Thus, in both cases we required the plaintiffs to make
out a claim for intentional infliction of emotional distress in
order to recover damages for emotional suffering arising out of
the destruction of personal property.15
Based on our prior decisions and the Restatement
(Second) of Torts ' 911, and in the absence of a claim for
intentional infliction of emotional distress or another
intentional tort, we conclude that the appropriate measure of
damages applicable in the instant case is that found in ' 911 of
the Restatement (Second) of Torts, namely, the value of the items
to the owner.16 We thus decline to adopt the minority view which
allows damages for loss of items of personal property to be based
on sentimental and emotional value. This holding is in
accordance with our prior case law and the Restatement (Second)
of Torts, and ensures that such damages will not be based on
considerations which are difficult to measure.
Based on the foregoing, this case should be remanded to
the superior court for a new trial on the issue of damages for
the lost photographs and videotapes.
D. Attorney's Fees
Landers appears to challenge the attorney's fee award
in this case in his opening brief. However, Landers then goes on
to state that he does not argue that the award of attorney's fees
was incorrectly calculated. Rather, he states that "if the
Supreme Court reverses the trial court's evidentiary decision in
this matter, the award of attorney's fees should be held in
abeyance pending retrial on the damage issue." Because we are
vacating the jury's award of damages for loss of the photographs
and videotapes, the attorney's fee award is set aside as it is
dependent on the judgment.
V. CONCLUSION
We REVERSE and REMAND for a new trial on damages in
accordance with this opinion.
_______________________________
1 The standard of review for a trial court's decision to
exclude evidence discussed in Section IV.C. below, is abuse of
discretion. Agostinho v. Fairbanks Clinic, 821 P.2d 714, 716 n.2
(Alaska 1991). However, the question on review in this case is
whether the trial court applied the correct legal standard in the
exercise of its broad discretion. This is a question of law.
2 Alaska Rule of Evidence 103(a)(2) provides that error
may not be predicated upon a ruling which excludes evidence
unless a substantial right of the party is affected and "the
substance of the evidence was made known to the court by offer or
was apparent from the context within which questions were asked."
3 A number of courts from other jurisdictions have held
that where a judge has made a ruling in limine, an offer of proof
is not required. Collins v. Wayne Corp., 621 F.2d 777, 781 (5th
Cir. 1980); Dicks v. Cleaver, 433 F.2d 248, 252 (5th Cir. 1970);
Himango v. Prime Time Broadcasting, Inc., 680 P.2d 432, 436
(Wash. App. 1984). For example, in Himango v. Prime Time
Broadcasting, Inc., Prime Time appealed the trial court's
exclusion of certain evidence. The Washington Court of Appeals
held that the issue was properly before the court for review even
though Prime Time did not make a formal offer of proof because
"the issue was fully argued in the motion in limine and the trial
court was aware of the basis for Prime Time's proffered
evidence." Id. at 436.
4 Alaska Rule of Civil Procedure 51(a) provides that
"[n]o party may assign as error the giving or the failure to give
an instruction unless the party objects thereto before the jury
retires to consider its verdict, stating distinctly the matter to
which the party objects and the grounds of the objection."
5 The superior court applied this standard in the present
case. Moreover, in Richardson v. Fairbanks North Star Borough,
705 P.2d 454 (Alaska 1985), this court limited the damage award
for loss of a pet dog to the dog's market value at the time of
death. To this effect, we stated:
The superior court correctly held that the
Richardsons' subjective estimation of
Wizzard's value as a pet was not a valid
basis for compensation. Since dogs have
legal status as items of personal property,
courts generally limit the damage award in
cases in which a dog has been wrongfully
killed to the animal's market value at the
time of death.
Id. at 456 (citations omitted).
6 Campins v. Capels, 461 N.E.2d 712, 720 (Ill. App.
1984); Bond v. A.H. Belo Corp., 602 S.W.2d 105, 109 (Tex. App.
1980); Herberg v. Swartz, 578 P.2d 17, 25 (Wash. 1978); and
McCurdy v. Union Pacific R.R. Co., 413 P.2d 617, 623 (Wash.
1966).
7 Restatement (Second) of Torts ' 911 cmt. e; ' 927 cmt.
c (1977).
8 Garcia v. Color Tile Distrib. Co., 408 P.2d 145, 149
(N.M. 1965); Winters v. Charles Anthony, Inc., 586 P.2d 453, 454
(Utah 1978); McCurdy, 413 P.2d at 623; Broyles v. Broyles, 711
P.2d 1119, 1124 (Wyo. 1985); Restatement (Second) of Torts ' 911
cmt. e; ' 927 cmt. c (1977).
9 See also Broyles, 711 P.2d at 1124; McCurdy, 413 P.2d
at 623.
10 Herberg, 578 P.2d at 25 (quoting Kimball v. Betts, 169
P. 849, 850 (1918)); see also Broyles, 711 P.2d at 1124
(claimants generally may not recover for the sentimental or
fanciful value placed on lost property such as photographs); and
Restatement (Second) of Torts ' 911 cmt. e (1977) (damages cannot
be based on sentimental value).
11 Campins, 461 N.E.2d at 721.
12 Campins, 461 N.E.2d at 721; Bond, 602 S.W.2d at 109.
However, sentimental value does not mean "mawkishly emotional or
unreasonable attachments to personal property." Campins, 461
N.E.2d at 721. A court should not allow a substantial recovery
for loss of property when the specific owner has an atypical
sentimental connection with the item involved. Id. Rather,
sentimental value refers to the feelings normally generated by an
item of personal property. Id. Thus, a jury could not base a
damages award on a claimant's testimony that certain photographs
were "priceless."
13 To this effect, the court stated as follows:
It is a matter of common knowledge that items
such as these [personal items] generally have
no market value which would adequately
compensate their owner for their loss or
destruction. Such property is not
susceptible of supply and reproduction in
kind, and their greater value is in sentiment
and not in the market place. In such cases
the most fundamental rule of damages that
every wrongful injury or loss to persons or
property should be adequately and reasonably
compensated requires the allowance of damages
in compensation for the reasonable special
value of such articles to their owner taking
into consideration the feelings of the owner
for such property. . . . Where such special
value is greater than the market value, it
becomes the only criterion for the assessment
of damages.
Bond, 602 S.W.2d at 109 (citations omitted).
14 As to a claim for intentional infliction of emotional
distress, we stated as follows:
The Restatement (Second) of Torts, '
46(1) (1965) establishes the elements of a
claim of intentional infliction of emotional
distress. The offending party, through
extreme or outrageous conduct, must
intentionally or recklessly cause severe
emotional distress or bodily harm to another.
Richardson, 705 P.2d at 456.
Landers explicitly states that he did not make any
claim for intentional infliction of emotional distress. Landers
further observed that since the Municipality is not subject to
punitive damages, he did not attempt to show recklessness or
intent on the part of the Municipality. Landers further argues
that, "Since punitive damages are not allowed against
municipalities, a valuation method that assesses the owner's
emotional or sentimental value of items not likely to have market
value is appropriate."
15 If Landers had introduced evidence that the
Municipality had committed an intentional trespass or conversion
he might possibly have recovered enhanced damages. The
Restatement (Second) of Torts ' 905(b) takes the position that
damages for emotional distress resulting from the conversion of
chattels should be recoverable. To this effect, comment d to
' 905 states as follows:
One who has a cause of action for a tort
may be entitled to recover as an element of
damages for that form of mental distress
known as humiliation, that is, a feeling of
degradation or inferiority or a feeling that
other people will regard him with aversion or
dislike. This state of mind may result from
. . . the deliberate trespass to land or
destruction or dispossession of chattels.
(Emphasis added.) One authority states:
Recovery for mental distress in reaction
to the negligent damage or destruction of
personal property is ordinarily not
available. . . . When the defendant's
conduct is intentional, willful, or
malicious, however, mental anguish is a
proper element of damage.
4 Marilyn Minzer, Jerome H. Nates, Clark D. Kimball & Diana T.
Axelrod, Damages in Tort Actions ' 37.30 (1993).
16 In argument before the superior court on February 12,
1993, Landers tendered the damage theory we refer to as "value to
the owner."
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