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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Joseph v State of Alaska (07/13/2001) sp-5432

Joseph v State of Alaska (07/13/2001) sp-5432

     Notice:  This opinion is subject to 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, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


JOE JOSEPH and JUDITH JOSEPH, )
as Personal Representatives   )    Supreme Court No. S-8518
of the Estate of Rudolph      )    
Joseph,                       )    Superior Court No.
                              )    2NO-96-101 CI
             Appellants,      )
                              )    O P I N I O N
     v.                       )
                              )    [No. 5432 - July 13, 2001]
STATE OF ALASKA,              )
                              )
             Appellee.        )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Second Judicial District, Nome,
                       Ben J. Esch, Judge.


          Appearances:  C.R. Kennelly and Michael A.
          Stepovich, Stepovich, Kennelly & Stepovich,
P.C., Anchorage, for Appellants.  Richard Keck, Assistant Attorney
General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.  


          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          EASTAUGH, Justice.
          MATTHEWS, Chief Justice, with whom CARPENETI,
Justice, joins, dissenting.  


I.   INTRODUCTION
           A jailer owes its prisoners the duty of reasonable care
to protect them from reasonably foreseeable harm, including self-
inflicted harm.  Rudolph Joseph committed suicide while he was
imprisoned in a state jail.  Was it error to require the jury in
the resulting wrongful death case to excuse the state from its duty
of reasonable care if the jury found that Joseph's suicide was
intentional?  We hold that it was, because intentional suicide is
not a complete defense to a claim that a jailer negligently failed
to prevent a prisoner's reasonably foreseeable suicide.  We
therefore reverse the state's judgment and remand for retrial of
claims that the state breached its duty of reasonable care and that
any breach was a legal cause of harm to Rudolph Joseph's estate. 
We also hold that while it was error to dismiss prospective jurors
for cause without examining them individually, the record does not
demonstrate that this error caused the jury panel or the trial jury
to be unrepresentative.
II.  FACTS AND PROCEEDINGS
          Rudolph Joseph was arrested in Nome on May 11, 1996,
after he struck his cousin in the face with a 1.75-liter glass
bottle one-third full of rum.  He was charged with assault and
taken at around 4:25 p.m. to Anvil Mountain Correctional Center, a
State of Alaska facility, where he was searched and placed in a
cell with a video camera.  Joseph was intoxicated.  The booking
record stated that he was a thirty-one year old Alaska Native who
was "too intox"to sign the booking sheet or to acknowledge that he
had been given the opportunity to make telephone calls.  The
arresting officer, employed by the Nome Police Department, observed
that Joseph walked without any noticeable impairment, spoke softly
and clearly, had a moderate odor of alcohol on his breath, was
cooperative, demonstrated no unusual behavior, and seemed
remorseful about his cousin's condition after learning that she
required stitches.  Joseph never mentioned or alluded to suicide to
the city and state officers.
          Shortly after 7:00 p.m. the state correctional officer
monitoring Joseph's cell by video noticed that the camera lens had
been obscured.  She took no responsive action.  Ten to fifteen
minutes later another state correctional officer found Joseph
slumped on the floor of his cell with a nylon cord around his neck. 
The cord was suspended from a shelf support in Joseph's cell.
Officers immediately called for an ambulance and tried to
resuscitate Joseph, but he was pronounced dead shortly after his
arrival at the hospital.
          The nylon cord was the drawstring from Joseph's sweat
pants; it had not been discovered and taken from him when he
arrived at the correctional facility.
          Joe and Judith Joseph, Rudolph's parents, sued the state
on behalf of Rudolph's estate for negligently failing to prevent
his suicide.  A jury returned a verdict for the state.  The Josephs
appeal, raising questions about how the jury was selected and
instructed. 
III. DISCUSSION
     A.   Was It Reversible Error to Exclude Prospective Jurors
Without Examining Them Individually? 
     
          Several days before prospective trial jurors were to be
summoned, the state indicated that it would invoke Alaska Civil
Rule 47(c)(11) [Fn. 1] and challenge for cause anyone who had ever
been charged criminally by the state or had been involved in
litigation against the state.  Two days later, the superior court
informed the parties that it had instructed the clerk to remove
from the jury list all persons who had been charged with criminal
offenses.  The court stated that it had relied on the state's
assertion that it would exercise a "blanket preempt[ion]"to all
such persons, and had acted to minimize inconvenience for those who
would have been called to appear for possible selection, only to be
disqualified. The court overruled the Josephs' objection to
deleting prospective jurors from the list without an individual
determination by the court that they could not be fair and
impartial. 
          The Josephs argue on appeal that it was an abuse of
discretion to fail to examine prospective jurors individually
before excluding them on the ground they had previously been
prosecuted for criminal offenses by the state. [Fn. 2]
          We will overturn a trial court's grant or denial of 
juror challenges for cause "only in exceptional circumstances and
to prevent a miscarriage of justice."[Fn. 3]  Selection of jurors
by a method which fails to substantially comply with statutory
requirements is reversible error only if the failure prejudices a
party. [Fn. 4]  We exercise our independent judgment when
interpreting the Alaska Rules of Civil Procedure. [Fn. 5]
          Alaska Civil Rule 47(c) provides:
          Challenges for Cause.  After the examination
of prospective jurors is completed and before any juror is sworn,
the parties may challenge any juror for cause.  A juror challenged
for cause may be directed to answer every question pertinent to the
inquiry.  Every challenge for cause shall be determined by the
court. . . .
The rule's text makes no provision for preemptive exclusion of
prospective jurors; a challenge for cause may be granted only after
the prospective juror has been examined. [Fn. 6]  The rule
implicitly requires the court to examine a prospective juror
individually before deciding whether to grant a challenge.
          Individual examinations were essential to permit the
court to determine whether the state had indeed previously charged
each challenged prospective juror with a crime.  Relying
exclusively on records potentially caused errors that only
individual examinations could have avoided.  These included errors
in identifying the person charged (caused by similar or identical
names and residential addresses), errors in identifying the
charging entity (caused by attributing local government charges to
the state), and substantive informational errors.
          We cannot say that these potential errors were so
unlikely that preemptive exclusion was consistent with the rule. 
The appellate record does not establish what "records"were used to
cull out prospective jurors.  The state's brief asserts that the
court relied on computer-generated "criminal history printouts."
The transcript implies that they were the state's APSIN computer
records. [Fn. 7]  Regardless, the appellate record does not
establish either the data's accuracy in general, or their accuracy
as to each excluded prospective juror.
          The state argues that Civil Rule 47(c)(11) made exclusion
mandatory.  In support, it cites Malvo v. J.C. Penney Co. [Fn. 8] 
We need not decide whether exclusion was mandatory, because
reliance on potentially inaccurate information was a superseding
flaw in the selection process.
          The procedure followed here may have excluded persons who
would not have been disqualified had they been individually
examined.  Does this error require reversal?  The Josephs argue
that it does because it resulted in a jury which was not
representative of the community.  They claim the selection process
risked excluding a disproportionate percentage of Alaska Natives
because, they argue, that group has a relatively high incidence of
criminal involvement.
          Selection of jurors by a method which does not
substantially comply with statutory requirements is reversible
error only if the failure prejudices a party. [Fn. 9]  In Calantas
v. State, [Fn. 10] a court clerk disqualified prospective jurors
living outside Kodiak proper and then summoned only those jurors
she could reach by telephone. [Fn. 11]  We reasoned that errors in
assembling a jury panel constitute "substantial failure to comply"
only when they affect the random nature or objectivity of the
selection process. [Fn. 12]  We then held that the clerk's
technical violations of the statutes governing jury selection did
not prejudice the plaintiff's case. [Fn. 13] 
          The same reasoning applies here.  Prematurely excluding
some prospective jurors did not jeopardize the random selection of
the remaining jurors. 
          Moreover, the appellate record does not reflect the
jury's makeup or even whether any given prospective juror was
excluded in error.  The Josephs' appellate brief argues that an
internet website and a journal article support their claim that the
error harmed them, because they claim that those sources establish
that the population of Nome, the trial site, is fifty-four percent
Native, and that "Alaska Natives have a higher inciden[ce] of
criminal involvement or involvement with the State." This
information was not submitted to the trial court and, as the state
argues, non-record information not subject to judicial notice
should not be used to support factual assertions on appeal. [Fn.
14]  But more importantly, these general statistics do not
demonstrate that any particular person was excluded in error from
the jury panel, or that the disqualifications caused the jury panel
to be unrepresentative of a cross-section of the community.  
          Because the record fails to show that the selection
errors altered the random nature or objectivity of the selection
process, [Fn. 15] we decline to reverse on this point.
     B.   Was the Jury Correctly Instructed About the Effect of a
Prisoner's Intentional Suicide? 

          The Josephs' complaint claimed that the state, as Rudolph
Joseph's custodian, negligently breached its duty to protect him
from injuring himself because it did not take the nylon cord from
his sweat pants, provide him a safe cell, or adequately monitor him
in his cell.  The state denied liability and affirmatively asserted
that Rudolph Joseph "died as a result of his own intentional
actions." 
          On appeal, the Josephs argue that "the intentional act of
suicide is not a complete defense to a claim for negligently
failing to prevent a suicide"and that the jury instructions and
special verdict form consequently misdirected the jury.
          The instructions and the special verdict form required
the jury to return a defense verdict if it found that Rudolph
Joseph died "as a result of his intentional actions."  Whether he
acted intentionally turned on whether he was "so intoxicated that
he could not exercise due care for himself."
          The pertinent instructions are not complex.  Instruction
No. 17 informed the jury that a jail taking custody of a prisoner
under circumstances depriving the prisoner of normal opportunities
for protection has a duty to protect the prisoner against the risk
of self-injury or self-destruction, where jail personnel "are put
on notice of an infirmity or condition of the prisoner which
prevents him from exercising the same degree of care for his own
safety that he would . . . if he had not had the infirmity or
condition." That instruction also stated that jailers aware that
a prisoner is intoxicated owe that prisoner "a higher degree of
care"than they owe an "ordinary sane, sober prisoner in control of
his mental and physical faculties."[Fn. 16]
          Instruction No. 20 explained that to find that Rudolph
Joseph's harm was, as the state claimed, a result of his
intentional actions, the jury had to find that his actions were
both intentional and "a legal cause of his death."[Fn. 17]  
          Instruction No. 21 stated that "[i]ntoxication does not
relieve a person from liability for the consequences of his
intentional act,"unless the "person is so intoxicated, [his]
mental and physical faculties are so impaired, that he is incapable
of exercising due care for himself."[Fn. 18]
          Likewise, the special verdict form's first question told
the jury that Rudolph Joseph could not have acted intentionally
"[i]f [he] was so intoxicated that he could not exercise due care
for himself."[Fn. 19]  It then asked the jury whether the state
had proved that Rudolph Joseph died "as a result of his intentional
actions." The verdict form instructed the jury not to answer any
further questions if it answered the first question "yes." The
jury answered "yes."
          Because the jury found that Rudolph Joseph's intentional
acts were a legal cause of his death, these instructions and the
special verdict form foreclosed the jury from deciding whether the
state was negligent and whether the state's alleged negligence was
a legal cause of injury.  Given the finding that the suicide was
intentional, the verdict form mandated a defense verdict even if
the suicide was reasonably foreseeable to the state and Rudolph
Joseph's intentional acts were not the only legal cause of his
death.
          This appeal turns on the propriety of these instructions
and the special verdict form.  We apply our independent judgment in
considering this issue. [Fn. 20] 
          1.   Can a jailer be liable on a claim it negligently
failed to prevent a prisoner's reasonably foreseeable suicide even
if the prisoner acted intentionally?
          We addressed the duty of jailers to prevent prisoners
from harming themselves in Wilson v. City of Kotzebue [Fn. 21] and
Kanayurak v. North Slope Borough. [Fn. 22]  Those cases establish
that jailers owe prisoners a duty to exercise reasonable care for
the protection of their lives and health. [Fn. 23]  This duty
encompasses a duty to prevent self-inflicted harm that is
reasonably foreseeable. [Fn. 24]  What this duty requires of a
jailer depends on the circumstances.  We have recognized, for
example, that a jailer aware that a prisoner is intoxicated when
taken into custody "must take more precautions for the safety of
the prisoner than would be required in the case of an ordinary,
sane, sober prisoner in control of his mental and physical
faculties."[Fn. 25]  These principles are consistent with the
prevailing view of duties jailers owe their prisoners. [Fn. 26]
          We implied in Wilson that the duty jailers owe prisoners
is equivalent to the duty common carriers owe passengers. [Fn. 27] 
The duty arises out of the custodial relationship.  This suggests
that the jailers have voluntarily assumed a duty of care, or that
imprisonment has diminished the prisoners' ability to care for
themselves or has limited the ability of others to help prisoners
avoid harm, including self-inflicted harm. [Fn. 28]
          Because the special verdict form prevented the jury from
reaching the issues of breach of duty and causation, we must view
the evidence on those issues in a light most favorable to the
Josephs. [Fn. 29]  So viewed, the evidence supports the conclusion
that reasonable jurors might have found that even though Joseph's
suicide was intentional, his suicide was reasonably foreseeable to
the state, that the state breached its duty of reasonable care to
prevent Joseph's foreseeable suicide, and that its breach was a
legal cause of his death.
          The parties' arguments focus on Wilson and Kanayurak.
According to the state, those cases establish that a prisoner's
deliberate decision to commit suicide provides a complete defense
to a claim that the jailer negligently failed to prevent the
suicide, justifying the instructions and special verdict form given
here. 
          The Josephs argue that, given a custodian's duty to
protect a prisoner from reasonably foreseeable harm, "the very act
to be avoided [suicide] cannot be used as a complete defense to an
action based on a breach of the duty to prevent that act." They
assert that Wilson is distinguishable on its facts and that the
question presented here was not before us in Kanayurak.  They
therefore claim that their jury was erroneously instructed.
          Wilson was an intoxicated prisoner who suffered burns
when he set fire to his mattress with a lighter his jailers
negligently failed to take from him. [Fn. 30]  The jury awarded
Wilson damages, but less than he sought. [Fn. 31]  Wilson appealed,
arguing that it was error to submit the issue of his comparative
negligence to the jury. [Fn. 32]  We agreed, and reversed. [Fn. 33]
          We first discussed the effect of incapacity on the duty
owed:
               The general rule is that voluntary
intoxication does not relieve one from liability for the
consequences of his intentional or negligent act . . . .  This rule
has been held inapplicable, however, in the case of one who is so
intoxicated, and whose mental and physical faculties are so
impaired, that he is incapable of exercising due care for himself,
where he is in the custody of another who is charged with the duty
of caring for his safety.  There have been numerous decisions
involving mental patients, involuntarily confined drug addicts and
prisoners, which have held that recovery for self-inflicted harm is
not barred where the plaintiff was incapable of exercising due care
by virtue of his mental illness, drug addiction, or intoxication. 
In such cases, if the defendant has or should have knowledge of the
plaintiff's condition, it may be found negligent if it violated its
duty of exercising due care for the plaintiff's health and safety,
for such duty encompasses the duty to prevent reasonably
foreseeable acts involving an unreasonable risk of harm.[ [Fn. 34]]
          We then held that it was error to submit the comparative
negligence issue to the jury. [Fn. 35]  We reasoned that the
evidence required either of two conclusions -- which we treated as
mutually exclusive -- both of which precluded finding that Wilson
had negligently contributed to his injuries. [Fn. 36]  Either way,
we reasoned, a jury could not properly find him negligent. [Fn. 37] 
Thus, we stated:
          The evidence submitted in this case regarding
Wilson's conduct reasonably lent itself to either of two
conclusions: (1) Wilson committed an intentional tort, injuring
himself in the process; or (2) Wilson was so intoxicated as to be
incapable of acting intentionally.  The first conclusion bars
Wilson's recovery regardless of any negligence on the part of
Kotzebue, for a person may not recover for injuries resulting from
his own intentional conduct. . . . The second conclusion compels
the inquiry of whether the defendant had notice of Wilson's
condition, and eliminates the issue of Wilson's responsibility for
his acts.[ [Fn. 38]]
          
          The state founds its argument here on this emphasized
language in Wilson.
          Lillian Kanayurak committed suicide while incarcerated by
the North Slope Borough. [Fn. 39]  Her estate's negligence action
against the borough was dismissed on summary judgment. [Fn. 40]  On
appeal, the estate mainly argued that the intentional tort language
in Wilson did not preclude the estate's claim, given a jailer's
duty to protect its prisoner and given genuine fact disputes about
whether Lillian Kanayurak was unable to protect herself.  We
reversed and remanded for trial. [Fn. 41]
          In doing so, we rejected the borough's contention that
Kanayurak's suicide was an intentional act that defeated liability.
[Fn. 42]  We stated that this defense does not apply to a prisoner
whose intoxication renders her incapable of exercising due care for
herself. [Fn. 43]  Quoting Wilson, we again recognized that the
general rule -- that voluntary intoxication does not relieve one
from liability for the consequences of his intentional or negligent
act -- does not apply "in the case of one who is so intoxicated,
and whose mental and physical faculties are so impaired, that he is
incapable of exercising due care for himself, where he is in the
custody of another who is charged with the duty of caring for his
safety."[Fn. 44]  We reiterated Wilson's statement, quoted and
emphasized above, that "a person may not recover for injuries
resulting from his own intentional conduct. . . ."[Fn. 45]  And we
also noted that if the jailer is aware that the prisoner is
intoxicated, the jailer must take more precautions for the safety
of the prisoner "than would be required in the case of an ordinary,
sane, sober prisoner in control of his mental and physical
facilities."[Fn. 46]  
          The Josephs' appeal requires us to consider these two
cases carefully.  Stare decisis compels us to give precedential
value to our prior holdings. [Fn. 47]  But it is not clear that
Wilson and Kanayurak actually resolved the issue now before us.  A
case is not binding precedent if its holding is only implicit or
assumed. [Fn. 48]  Dictum is not holding. [Fn. 49]  As we will see,
in neither case did we squarely hold that the intentionality of a
prisoner's suicide excuses the jailer from the duty of reasonable
care to prevent the prisoner from committing a reasonably
foreseeable suicide.   
          Wilson is factually distinguishable from the Josephs'
case.  Wilson did not attempt or intend suicide.  He intentionally
set fire to his bedding, but did not intend to harm himself. [Fn.
50]  His injuries were thus an unintended byproduct, not the goal,
of his arson.  We cited no authority for our statement that "a
person may not recover for injuries resulting from his own
intentional conduct."[Fn. 51]  But because Wilson's conduct
breached civil and criminal duties he owed others, including the
jail's owner, [Fn. 52]  this language and Wilson's holding are
consistent with the principle -- repeatedly expressed in our later
decisions -- that "allowing one convicted of an intentional crime
to impose liability on others for the consequences of his own
antisocial conduct runs counter to basic values underlying our
criminal justice system."[Fn. 53]  In comparison, Rudolph Joseph's
conduct breached no tort or criminal duty he owed others. 
          Wilson is also legally distinguishable, because it dealt
only with Wilson's claim that it was error to allow the jury to
reduce his recovery on a comparative negligence theory. [Fn. 54] 
The question whether his intentional acts would altogether bar
recovery for injuries resulting from his own conduct was not before
us; Wilson did not appeal that issue, and we simply noted that the
jury had been correctly instructed on "this point."[Fn. 55]  And,
given the instruction on that point and the jury's award of damages
to Wilson, the jury necessarily must have found that his
intentional acts did not cause his injuries. [Fn. 56]  The
discussion of the effect of his intentional conduct was therefore
dictum.  Our holding was not that Wilson's intentional conduct
precluded him from asserting a negligence claim against his jailer,
but that given the evidence it was error to reduce his recovery on
a comparative negligence theory. [Fn. 57]  And the result on appeal
was that Wilson could retry his damage claim without danger of a
comparative negligence reduction.
          We also observe that Wilson approvingly cited several
opinions from other states permitting claims for negligent failure
to prevent intentional suicides. [Fn. 58]
          In Kanayurak we approvingly quoted Wilson's statement
that "a person may not recover for injuries resulting from his own
intentional conduct,"and held that evidence of Lillian Kanayurak's
intoxication raised a fact dispute about whether she was incapable
of exercising due care. [Fn. 59]  We therefore reversed the summary
judgment dismissing her estate's wrongful death claim. [Fn. 60]
          We recognized in Kanayurak that a jailer's duty is
commensurate with the reasonably foreseeable harm: "This duty to
protect the prisoner's health and safety encompasses a duty to
prevent even self-inflicted harm assuming that such harm is
reasonably foreseeable."[Fn. 61]  Evidence that the borough knew
or should have known of Lillian Kanayurak's intoxication, severe
depression, and susceptibility to suicide led us to conclude that
there was a genuine issue of material fact about whether the
borough "had reason to anticipate"her suicide attempt. [Fn. 62] 
Given the factual dispute about Kanayurak's ability to act
intentionally, we held that we could not affirm the borough's
summary judgment on a theory the borough owed no duty to prevent
the suicide. [Fn. 63]
          The Josephs assert that Kanayurak is distinguishable
because the question presented here -- whether a jailer's duty of
reasonable care to prevent a foreseeable suicide is excused if the
suicide is intentional -- was not squarely before us in Kanayurak. 
They claim that although it is arguable that we there "tacitly
approved"an "intentional act"defense in institutional suicide
cases, we were able to dispose of the issue by ruling that there
was a genuine fact dispute about the extent of Lillian Kanayurak's
intoxication: "Having not had the issue presented in this case
squarely before it in Kanayurak, this Court did not consider or
approve of the defense . . . ."[Fn. 64]
          Kanayurak did not squarely hold that intentionality is a
defense to a claim that a jailer negligently failed to prevent a
reasonably foreseeable suicide.  And Kanayurak's briefs did not
squarely raise that issue.  But our reliance on Wilson and our
holding in Kanayurak that there was a genuine fact dispute about a
material issue -- the extent of Lillian Kanayurak's intoxication --
could be read to indicate that we silently reasoned that even if
her suicide was reasonably foreseeable and her jailers breached
their duty of care, her estate would have had no negligence claim 
if a jury found that she acted intentionally.
          Nonetheless, Kanayurak did not decide -- or even
explicitly discuss -- the issue of intentionality as a defense. 
Having no reason to give the issue more than passing attention, the
opinion simply relied on Wilson -- a legally and factually
distinguishable case.  The key procedural difference between the
Josephs' case and Kanayurak is that the issue of Rudolph Joseph's
capacity was actually tried; and because the jury found that he
acted intentionally, the special verdict form prevented it from
reaching any other issues.  In Kanayurak, however, we simply
reversed the jailer's summary judgment and remanded for trial. 
Having done so, we needed to go no further.  It was not necessary
to decide how the Kanayurak trial jury was to be instructed.  The
issue central here was, at most, ancillary and anticipatory in
Kanyurak.
          The state's discussion of Wilson and Kanayurak
acknowledges that these cases do not hold that an inmate's ability
to engage in intentional conduct is a complete defense to a claim
that his suicide was reasonably foreseeable.  Thus, the state's
brief cites those cases as supporting this proposition: "[I]f the
inmate is sober enough to be capable of acting intentionally and
the suicide risk is not foreseeable, then a suicide will be
considered an intentional act for which the jailer is not liable."
[Fn. 65]  As the state describes it, that proposition would not
excuse the state from liability if a suicide were both intentional
and reasonably foreseeable.  The state also argues that under
Wilson and Kanayurak, "a jailer should not be found liable for the
suicide of a sane, sober inmate who commits an unexpected and
unforeseeable suicide." By implication, a jailer could be liable
for the expected or foreseeable suicide of a sane, sober prisoner
(who thus acts intentionally).  Likewise, the state's brief cites
authorities, including Restatement (Second) of Torts sec. 302B
(1965),
for the proposition that "[i]f the risk of intentional conduct by
a prisoner is not foreseeable, then the jail is not liable for
intentional harm caused by the inmate."
          The state's brief also argues that "a relatively sober
prisoner [who] intentionally injures himself . . . may not recover
damages, regardless of the jailer's negligence." But the other
passages quoted above from its brief support a conclusion that
Kanayurak did not squarely hold that intentionality is a complete
defense to a claim that a jailer negligently failed to prevent a
prisoner's foreseeable suicide.  Now that that issue is squarely
before us, we must consider it and decide the extent to which this
case is resolved by what we said in Wilson and Kanayurak.
          We note at the outset that treating an intentional
suicide as a complete defense may be scientifically problematic in
the abstract.  Writers have suggested that no suicide is truly
intentional, because it is not an exercise of free will. [Fn. 66]
          We turn now to the theoretical justifications for
treating intentional conduct as a complete defense here.  The state
claims that Wilson and Kanayurak reflect "well-established tort
principles"; in support, it cites (1) superseding causation, (2)
assumption of risk, and (3) Restatement (Second) of Torts sec.
503(3)
(1965).  Wilson and Kanayurak do not mention these principles. 
Indeed, neither case explains why intentionality should bar a claim
that a jailer negligently failed to take steps to prevent a
prisoner's foreseeable suicide.   We conclude that these principles
provide doubtful legal support for applying Wilson's language to
the Josephs' case.
          First, a reasonably foreseeable occurrence cannot be an
intervening/superseding cause if the actor has a duty to prevent
that occurrence. [Fn. 67]  If his suicide was reasonably
foreseeable to his jailer, Rudolph Joseph's conduct could not have
been an intervening/superseding cause of his death, excusing the
state's alleged negligent breach of the duty it owed him.  In this
context, an intervening/superseding cause analysis coincides with
the duty analysis.  Only if an intentional act of suicide was not
reasonably foreseeable would it relieve the jailer of a duty to
prevent that suicide.  But in that event, the jailer would not have
breached its duty to prevent the suicide.
          Second, excusing a jailer's breach of duty cannot easily
be squared with the way assumption of risk usually arises in
Alaska. Typically a defendant asserts that a claimant has
voluntarily assumed the risk posed by the defendant's conduct. [Fn.
68]  Its application usually turns on whether the claimant
recognizes and accepts the risks the defendant's conduct poses.
[Fn. 69]  It normally requires evidence that the claimant
appreciates the risks arising from the defendant's conduct. [Fn.
70]  Wilson and Kanayurak discuss no facts suggesting that Wilson
or Kanayurak recognized and assumed the risks posed by their
jailers' allegedly negligent conduct, and neither case cited that
doctrine.  Moreover, it is not obvious that the doctrine as applied
in Alaska encompasses a claimant's acceptance of risks inherent in
his or her own behavior.  And not every intentional act is intended
to produce death.  Some "attempts"may be gestures or intended to
elicit a response.  In such a case, the inmate may not mean to
assume any risk that the jailer will fail to intervene.  And
assumption of risk, as now interpreted, notably does not altogether
defeat a plaintiff's claim, but may only justify reduction of
damages by the fault attributable to the claimant in unreasonably
assuming a known risk. [Fn. 71] 
          Third, Restatement sec. 503(3) states that a plaintiff
who
acts in reckless disregard for his own safety cannot recover for a
defendant's negligence. [Fn. 72]  Its application to a jail suicide
would be problematic, because it seems to conflict with the duty
imposed in Restatement sec. 314A. [Fn. 73]  Likewise, it is unclear
why subsection 503(3) should defeat a claim alleging that a jailer
has negligently breached its duty to prevent a reasonably
foreseeable event, even though the prisoner has recklessly or
intentionally caused that event.  This application of subsection
503(3) would suffer from the same conceptual deficiency of applying
the intervening/superseding causation doctrine in the special duty
context of the prisoner-jailer relationship.  We also note that
Restatement sec. 503(3) comment c states that "[i]n general, the
effect of [a] plaintiff's reckless disregard of his own safety is
the same as that of his ordinary contributory negligence."[Fn. 74] 
In Alaska, contributory negligence is not a complete defense to
tort recovery, but merely reduces the plaintiff's recovery in
proportion to the plaintiff's comparative fault. [Fn. 75]
          The dissent argues that we should adhere to "the
principle that bars recovery for intended self-harm,"a principle
it calls the "intentionality rule."[Fn. 76]  It reasons that
Wilson and Kanayurak embody this principle, and that we should
follow the "framework"those cases provide. [Fn. 77]  The dissent
illustrates the principle with the example of a pedestrian who,
intending to kill himself, steps into the path of a negligently
driven car. [Fn. 78]  It appears the dissent would altogether bar
recovery for intended self-harm, even if the negligent conduct of
others was also a contributing legal cause of the harm.  
          But we do not read Wilson and Kanayurak to have held that
any such principle applies to jail suicide cases, so we are not
presented with the choice of adhering to or overruling prior
controlling precedent.  Nor are these cases a good source of the
all-or-nothing principle the dissent announces.  Certainly the
principle cannot explain Wilson:  Wilson may have intended to set
fire to his cell, but he did not intend self-harm.  And because
Kanayurak simply relied on Wilson, this principle does not explain
Kanayurak, either.  The dissent's reference to the "analogous
doctrine"of consent [Fn. 79] is not helpful for the same reason: 
Wilson did not consent to his injury, and Kanayurak simply quoted
Wilson.  Likewise, the dissent's concern that prisoners "may choose
suicide after cool deliberation"[Fn. 80] does not apply to Wilson,
who did not choose to harm himself, or Lillian Kanayurak, who seems
unlikely to have acted with "cool deliberation,"even assuming she
was not intoxicated. [Fn. 81]  This concern is better addressed by
the issues of breach, causation, and damages than as an affirmative
defense that could altogether excuse custodial negligence that is
a legal cause of harm.  Moreover, the dissent's pedestrian-driver
hypothetical fails to recognize that the duty owed by a jailer [Fn.
82] differs fundamentally from the duty owed by a driver who has no
reason to anticipate that a pedestrian will intentionally step out
into traffic to achieve death.  Reasonable drivers need not foresee
suicidal pedestrians; jailers must anticipate that some prisoners
will attempt suicide.
          Finally, to treat intentionality as a complete bar to a
claim based on negligence would be counter to our usual manner of
analyzing tort liability.  It would amount to a public policy
determination that a jailer simply owes no duty of reasonable care
under these circumstances.  The no-duty policy determination is
more typically reserved for cases in which there is no relationship
giving rise to a recognized duty of care.  Absent that
relationship, we typically apply the D.S.W. factors to decide
whether a duty of care exists. [Fn. 83]  But if the parties already
have a relationship that gives rise to a recognized duty of care,
the focus is instead on what conduct is needed to discharge that
duty. [Fn. 84]
          American tort law is highly individualistic in nature.
[Fn. 85]  In general, a person has no duty to protect another from
harm or to come to another's aid if he/she is in danger. [Fn. 86]
          But custodial situations are a well-known exception to
this no-duty rule.  As the Restatement notes, "[O]ne who is
required by law to take . . . the custody of another under
circumstances such as to deprive the other of his normal
opportunities for protection"owes that person a special duty of
care to protect him/her from "unreasonable risks of harm."[Fn. 87] 
The commentary to the Restatement notes that this duty extends to
risks "arising out of the actor's own conduct."[Fn. 88]  However,
the Restatement seems to limit this conduct to negligent conduct,
rather than the actor's own intentional acts. [Fn. 89]  Arguably,
therefore, a custodian is under no particular duty to protect the
person under custody from his own intentional acts of self-harm
barring some additional "special circumstances." 
          Almost all jurisdictions recognize that "special
circumstances"are needed in addition to a custodial relationship
to trigger a jailer's duty to prevent a prisoner's suicide. [Fn.
90]  The case law is split on what constitutes "special
circumstances." The majority of jurisdictions do not require a
threshold finding of mental illness or incapacitation. [Fn. 91] 
Most courts have held that if a prisoner's suicide is "reasonably
foreseeable,"the jailer owes the prisoner a duty of care to help
prevent that suicide. [Fn. 92]  While a prisoner's mental illness,
intoxication, or other impairment may be the reasons why the jailer
knows or should know that the prisoner is suicidal, other signs --
such as a declared intent to commit suicide -- are also sufficient.
[Fn. 93]  
          The question here is whether a jailer's duty of
reasonable care to protect a prisoner from unreasonable risks of
harm encompasses reasonably foreseeable suicide attempts.  We
conclude that it does, and that the intentionality of a prisoner's
suicide should not altogether excuse that duty.  In reaching that
conclusion, we note the origin of the relationship-based duty.  We
also note the difficulty of determining without an evidentiary
hearing whether a given suicide was exclusively the product of
intent, and the difficulty of determining after death whether a
suicidal prisoner, even if thwarted once, nevertheless ultimately
would have "succeeded." We think it better to analyze the jailer's
liability, if any, by looking to the issues of breach of duty,
causation, allocation of fault, and damages.  We also note that the
legislature has recognized that an actor's intentional conduct does
not preclude the actor from seeking an allocation of fault for
injury allegedly caused by the negligence of another. [Fn. 94]
          This is not to say that the prisoner's mental state is
irrelevant.  Because the jailer's duty is to take reasonable steps
under the circumstances to prevent the prisoner from committing
suicide, the prisoner's mental capacity may be critical in
determining whether the jailer has breached that duty.  As a North
Carolina appellate court recognized:
          In determining whether . . . jail or prison
authorities have executed their duty of reasonable care to keep a
prisoner safe and free from harm, the courts have recognized that
certain factors, such as the prisoner's mental state -- whether he
was sane or insane, severely depressed, psychotic or evidencing
other symptoms of mental disturbance -- or his physical condition
-- whether he was drunk, and if so, whether he was in a completely
helpless state -- are to be taken into consideration . . . . [T]he
courts have determined that what would constitute the reasonable
care of the prisoner demanded by law depends on the circumstances
of the given care, and have indicated that whether the amount of
supervision provided for the prisoner was adequate, and whether the
articles left with the prisoner could naturally be assumed to be
used as instruments of suicide, were questions to be decided by the
jury.[ [Fn. 95]]

Thus, a prisoner's mental state is relevant to but not dispositive
of the issue of the jailer's liability.
          Cases from other jurisdictions cover the spectrum in
discussing the effect of an intentional suicide.  One of the best
reasoned is Sauders v. County of Steuben, which held that "the act
of suicide cannot constitute contributory negligence or incurred
risk in a custodial suicide case."[Fn. 96]  The court also aptly
discussed the hazard that allowing such claims may make the jailer
the insurer of its prisoners' safety.  The court explained that
"the custodian does not have a duty to prevent a particular act
(e.g. suicide).  Rather, the duty is to take reasonable steps under
the circumstances for the life, health, and safety of the detainee
. . . .  The custodian is not an insurer against harm."[Fn. 97]
          Myers v. County of Lake, Indiana also succinctly
discussed the effect of an intentional suicide. [Fn. 98]  The
Seventh Circuit Court of Appeals, predicting Indiana law before
Sauders was decided, held that intentionality was not a per se
defense to the tort of negligently failing to prevent suicide. [Fn.
99]  Myers provides useful analysis of the reasons favoring
rejection of the intentionality defense.  
          Steven Myers was a sixteen-year-old boy with a history of
depression and suicidal tendencies.  He suffered permanent brain
damage from a failed suicide attempt while in custody at a county
detention center. [Fn. 100]  A jury concluded that the custodian
negligently failed to take precautions against suicide attempts.
[Fn. 101]  Due to lack of funding, the custodian staffed only one
part-time employee providing psychological services. [Fn. 102] 
Steven asserted that the inadequate staffing constituted negligent
failure to detect and curtail suicide risks. [Fn. 103]  These
facts, combined with Steven's established history of suicidal
tendencies, supported the verdict. [Fn. 104] 
          In upholding the verdict, the court rejected the county's
contention that even if it was negligent, it should not be liable
because the plaintiff had acted deliberately in bringing about his
own harm. [Fn. 105]  It noted that Indiana recognizes several
negligence defenses, including intervening cause, contributory
negligence, reckless disregard of one's own safety, and incurred
risk, but that none of those had been applied to suicide cases.
[Fn. 106]  It reasoned:
          If the custodian has a duty to protect the
inmate from himself, the fact that the inmate tried to harm himself
is a reason for liability rather than a defense. . . .  A duty to
prevent someone from acting in a particular way logically cannot be
defeated by the very action sought to be avoided.[ [Fn. 107]] 
          
This reasoning, as well as the court's conclusion that the majority
of courts considering the intentionality defense had rejected it,
[Fn. 108] supported the court's holding.
          The Myers court suggested that there is no meaningful
difference between the various theories which might bar recovery. 
After mentioning three possible theories which might apply
(intervening cause, reckless disregard of one's own safety, and
incurred risk), it stated that all three raise the same basic
question: whether intentionality is a defense.  The court then
disposed of the issue by addressing this broader question without
choosing a "legal pigeonhole."[Fn. 109]
          Some commentators have voiced practical concerns about
allowing juries to factor the fault or voluntariness of the suicide
victim's actions into their decision.  One commentator argues that
contributory negligence should bar certain negligence claims
because suicide prevention can be extremely difficult or
impossible.  One suggests that the voluntary act makes the actor
the "author of his own injuries":
          Suicide, however, is a voluntary act by a
person who consciously chooses to end his own life.  When a person
fails to exercise ordinary care to ensure his own safety, the law
regards that person as the author of his own injuries.  It would
seem to follow, therefore, that a court may justifiably bar
recovery by the suicide victim.[ [Fn. 110]]
          
          The practical concerns are valid.  Jailers cannot be
insurers.  Sauders and Myers note the difficulty of preventing even
foreseeable suicides.  We appreciate that difficulty, but the duty
we discuss here is not absolute.  Jailers need make only reasonable
efforts to protect prisoners from intentionally inflicted self-harm
that is reasonably foreseeable. [Fn. 111]
          The concerns of commentators who would not impose this
duty are best addressed by determining whether a given suicide was
reasonably foreseeable.  If it was not, the jailer will have
breached no duty to prevent it; if it was, the prisoner's conduct
may be considered in deciding what measures the jailer should have
taken to discharge its duty.  A prisoner's conduct may also be
considered in deciding whether a jailer's breach of duty was a
legal cause of harm to the prisoner.  Finally, a jury should be
permitted to allocate the claimant's damages in the same way it
usually does if multiple legal causes contribute to a loss. [Fn.
112]
          No other consideration would justify a conclusion that
intentionality should be a complete bar to such a claim.  Rudolph
Joseph's act was not criminal and breached no duty to others.  That
intentional suicide may be morally abhorrent to many does not seem
reason to completely bar the negligence claim.  That intentional
suicide may be difficult or impossible to prevent is a practical
consideration bearing on issues of breach, causation, and damages,
not duty.  Likewise, that the jailer should not be the insurer of
the prisoner's safety does not free the jailer from any duty of
reasonable care. 
          In summary, the intentionality of a prisoner's suicide
does not preclude a claim that a jailer negligently failed to
prevent that suicide. It was therefore error to treat
intentionality as a complete defense in context of the enhanced-
duty jailer-prisoner relationship.  We consequently reverse and
remand for a new trial under instructions that permit the jury to
reach the other liability issues even if it finds that Rudolph
Joseph acted intentionally.  
          2.   Should the jury have been permitted to consider
factors in addition to intoxication?
          The Josephs argue that it was error not to instruct the
jury that it could find the state liable "even if Rudy was not
incapacitated by alcohol." They assert that the instructions
"overemphasized 'intentional' and wrongly instructed on
'intoxication' and thus compelled the jury to conclude because Rudy
was not in a near comatose state as a result of alcohol, he must
have acted intentionally."[Fn. 113]  
          It is not clear that the Josephs adequately objected in
the trial court.  But because we are remanding for a new trial, we
choose to comment on this issue.  Even though the intentionality of
a prisoner's reasonably foreseeable suicide is not a complete
defense, intentionality is still potentially relevant.  For
example, it may bear on what preventive measures a jailer must
take, whether any breach of duty was a legal cause of harm, and
what damages are attributable to a jailer's negligence. 
          Because the instructions focused exclusively on
intoxication, they prevented the jury from considering all factors
that separately or collectively might have impaired Rudolph
Joseph's ability to exercise due care.  The Josephs' trial evidence
would have permitted a jury to find that intoxication was not the
only relevant factor and that the cumulative effect of these
factors could have affected Rudolph Joseph's ability to exercise
due care for himself. [Fn. 114]  Wilson and Kanayurak recognized
that intoxication is not the only possible source of impairment
that can limit the consequences of one's own conduct. [Fn. 115]  If
the Josephs offer equivalent evidence on remand, the intentionality
issue should not be limited to intoxication.
          Although the superior court took obvious care to
formulate instructions tracking language in Wilson and Kanayurak,
those cases did not turn on the text of instructions defining
intentionality.  Wilson concerned a comparative negligence
instruction, and held that the instruction on that issue was
erroneous. [Fn. 116]  Kanayurak reviewed a summary judgment. [Fn.
117]
          We also observe that the instructions failed to draw a
distinction that could be relevant on remand.  The jury was told
that it could not find the state liable if Rudolph Joseph "died as
a result of his intentional actions." That instruction would
preclude state liability if a prisoner's intentional suicide
gesture was a legal cause of his death, even though he did not
intend that death result.  Even the dissent would not completely
excuse the state in that circumstance.  The dissent's pedestrian-
driver hypothetical, for example, seems to turn on the pedestrian's
intention of achieving death.  The distinction could be relevant to
causation, damages, and perhaps other issues.  For example, whether
the intentional conduct is accompanied by an intention to cause
one's own death may bear on the custodian's ability to prevent the
suicide and on the decedent's life expectancy.
IV.  CONCLUSION          
          For these reasons, we REVERSE the judgment for the state
and REMAND for further proceedings.
MATTHEWS, Chief Justice, with whom Carpeneti, Justice, joins,
dissenting.
          There generally can be no tort recovery for a suicide.
[Fn. 1] Since a person who consents to conduct of another that is
intended to harm him cannot recover in tort, [Fn. 2] it follows, a
fortiori, that a person cannot recover for his own conduct having
the same intent.  Recovery for suicide is thus typically permitted
only where the suicidal act is not considered to be intentional,
either because the defendant's tortious conduct left the suicidal
individual unable to realize the consequences of his actions, or
because it created in him an uncontrollable impulse to commit
suicide. [Fn. 3]  For shorthand purposes I refer to the principle
that bars recovery for intended self-harm as the "intentionality
rule."
          In Kanayurak v. North Slope Borough, [Fn. 4] involving a
jail suicide by an intoxicated prisoner, and Wilson v. City of
Kotzebue, [Fn. 5] involving an intoxicated prisoner who was badly
burned after setting fire to his cell, we recognized a further
exception to the intentionality rule in the custodial context. 
Drawing on language from such cases as Dezort v. Village of
Hinsdale, [Fn. 6] we held that the intentionality rule would not
apply in a custodial setting if the prisoner "was incapable of
exercising due care by virtue of his mental illness, drug
addiction, or intoxication."[Fn. 7]  
          The instructions given by the trial court in this case
faithfully expressed the exception to the intentionality rule
established by Kanayurak and Wilson.  But today's majority opinion
changes the law.  It does away with the incapacity-based exception
to the intentionality rule and instead declares that the rule
itself does not apply in a custodial setting.  
          We do not depart from the precedent set by our case law
except when "clearly convinced"that a "rule was originally
erroneous or is no longer sound because of changed conditions."
[Fn. 8]  Those conditions are not met here, in my opinion.
          The incapacity-based exception was not erroneous when
adopted.  It was a reflection of cases in other jurisdictions that
similarly sought to limit the sometimes harsh application of the
intentionality rule when applied to prisoner suicides. [Fn. 9] 
These cases contrasted with more traditional cases which held that
intentionality was a bar as a matter of law, even when the prisoner
was intoxicated. [Fn. 10]  And the law established by Kanayurak and
Wilson was and is consistent with the analogous doctrine that
although a plaintiff's consent to an injury will bar recovery, the
consent will be ineffective if it is the product of intoxication or
other mental infirmity that incapacitates the plaintiff from giving
effective consent. [Fn. 11] 
          Likewise, there is no inconsistency between the inten-

tionality rule, when considered with the incapacity-based exception
to the rule, and recognition of a jailer's duty to exercise
reasonable care to prevent prisoners from harming themselves.  Like
consent, intentionality, including the absence of an incapacity, is
an affirmative defense that must be proven by the defendant. [Fn.
12]  Thus it is a plea in avoidance like other affirmative
defenses, and does not signify that the underlying duty does not
exist.  Further, as a practical matter, the underlying protective
duty cannot be freely ignored by prison employees, for the risk
that the defense cannot be established will often be present. 
Finally, the custodial incapacity exception recognizes that the
relationship between a jailer and a prisoner imposes a special duty
of care, as the jailer can be responsible for the suicide of an
incapacitated prisoner even if he is not also responsible for
bringing about the incapacity itself. [Fn. 13]
          The intentionality rule is both sound and deeply rooted
in our law. [Fn. 14]  If a pedestrian intending to kill himself
steps into the path of a car which is exceeding the speed limit can
his representatives recover from the car's driver?  The answer in
my opinion should be "no,"even though the driver had a duty of
care to pedestrians, violated that duty by speeding, and his
conduct may have been a cause of the death. [Fn. 15]  Since the
pedestrian intended to kill himself he should bear the whole
responsibility for it even though the negligence of another may
also have had a causal role. 
          I do not believe that prisoners should be regarded in
tort law as having lost the capacity to act intentionally
concerning self-harm simply because they are incarcerated.  To be
sure, some prisoners, such as those who are recently jailed and
intoxicated, present a strong case for the incapacity exception to
the intentionality rule.  But others do not.  People in prison may
choose suicide after cool deliberation for a wide variety of
reasons that are in no sense unique to their incarceration.  Long-
term illness might be one example, an effort to collect insurance
for one's family may be another.  In such cases the intentionality
rule should operate just as it should in the example of the
pedestrian who chooses death by walking in front of a speeding car. 
It is, or was, the function of the incapacity exception established
by our case law to separate cases that are eligible to receive a
recovery from those that should be barred. [Fn. 16]  
          The alternative ground for overruling precedent, that
changed conditions have made the rule of law in question no longer
sound, also is not satisfied in the present case.  Both Kanayurak
and Wilson were tried and decided after comparative fault was
established in Alaska. [Fn. 17]  Conceivably, the inclusion of
intentional conduct within the definition of "fault"by the 1997
amendment to the apportionment statute might be a changed condition
of relevance. [Fn. 18]  But this case accrued in 1996 and the
statute explicitly does not apply to cases accruing before August
7, 1997. [Fn. 19]  Moreover, the statute excepts assumption of risk
based on "enforceable express consent." Since an express consent
to injury and intentional self-injury are similar and the former is
still a bar to recovery, it may be that claims based on intentional
self-injury are also meant to be barred. [Fn. 20]
          Prisoners do not necessarily check their volitional
capacity at the prison gate.  Some but not all prisoners who
attempt suicide should be relieved of personal responsibility for
their actions.  Kanayurak and Wilson provide a framework for
separating those who should not be held responsible from those who
should be.  Today's opinion abandons this framework and adopts a
rule which holds that no prisoner is barred by the intentionality
rule from recovery for self-harm or destruction.  I am not
convinced that Kanayurak and Wilson were wrongly decided or that
they have become unsound because of changed conditions.  Because
the instructions under review were consistent with Kanayurak and
Wilson I believe the judgment should be affirmed.



                            FOOTNOTES


Footnote 1:

     Under Alaska Civil Rule 47(c)(11) it is ground for a challenge
for cause:  "[t]hat the person is or has been a party adverse to
the challenging party or attorney in a civil action, or has
complained of or been accused by the challenging party or attorney
in a criminal prosecution." Alaska Criminal Rule 24(c)(11)
contains a similar disqualification, but limits the
disqualification to two years.  We have asked the Alaska Standing
Committee on Civil Rules to review the duration of the civil rule's
disqualification.


Footnote 2:

     The Josephs also argue that the court similarly erred in
excluding persons who had been adverse to the state in civil
litigation.  Because there is no indication the court excluded
prospective jurors for that reason, we do not consider that
argument.  


Footnote 3:

     Mitchell v. Knight, 394 P.2d 892, 897 (Alaska 1964).


Footnote 4:

     See Calantas v. State, 599 P.2d 147, 149 (Alaska 1979); AS
09.20.040 (1998).


Footnote 5:

     See Ford v. Municipality of Anchorage, 813 P.2d 654, 655
(Alaska 1991). 


Footnote 6:

     See id.  Accord People v. Raisanen, 319 N.W.2d 693, 697-98
(Mich. App. 1982) (holding that blanket exclusion of potential
jurors who had received traffic citations was improper under
Michigan rule governing challenges for cause).


Footnote 7:

     Alaska's computerized criminal record information system is
known as APSIN -- the Alaska Public Safety Information Network. 
See Journey v. State, 895 P.2d 955, 960 n.23 (Alaska 1995).


Footnote 8:

     512 P.2d 575, 579-80 (Alaska 1973).  


Footnote 9:

     See Calantas, 599 P.2d at 149; AS 09.20.040.


Footnote 10:

     599 P.2d at 149.


Footnote 11:

     See id.


Footnote 12:

     See id.


Footnote 13:

     See id. at 150.


Footnote 14:

     See State, Dep't of Natural Resources v. Transamerica Premier
Co., 856 P.2d 766, 776 (Alaska 1993); Alaska R. App. P. 210(a);
Alaska R. Evid. 102.  


Footnote 15:

     See Malvo, 512 P.2d at 579-81. 


Footnote 16:

     Instruction No. 17 provided: 

               One who is required by law to take or who
voluntarily takes the custody of another under  circumstances, such
as to deprive the other of his normal opportunities for protection
has a duty to protect that person against unreasonable risk of
harm.  Such duty encompasses the duty to guard against risk of self
injury or self destruction by the prisoner, where the jail
personnel are put on notice of an infirmity or condition of the
prisoner which prevents him from exercising the same degree of care
for his own safety that he would had if he had not had the
infirmity or condition.  
               If a prisoner, when taken into custody,
is intoxicated, and the police and/or the jailers were aware of it
or should have been aware of it, they owe him a higher degree of
care than they owed to an ordinary sane, sober prisoner in control
of his mental and physical faculties.  They owe such prisoner a
duty to reasonably protect him from harm, including harm caused by
his own act to himself.


Footnote 17:

     Instruction No. 20 provided: 

               The defendant claims that the plaintiff's
harm resulted from Rudolph Joseph's own intentional action.  
               In order to find that plaintiff's harm
          was a result of Rudolph Joseph's intentional
actions, you must decide that it is more likely true than not true: 
               1.   that Rudolph Joseph's actions were
intentional and
               2.   that the intentional actions were a
legal cause of his death.  
               Instructions on the verdict form will
tell you what to do if you decide that Mr. Joseph's death was a
result of his intentional actions. 


Footnote 18:

     Instruction No. 21 provided:

          Intoxication does not relieve a person from
liability for the consequences of his intentional act.  A person
who becomes intoxicated is held to the same standard of conduct as
if they were sober.  However, this does not apply if a person is so
intoxicated, whose mental and physical faculties are so impaired,
that he is incapable of exercising due care for himself and is in
the custody of another who has a duty to care for the intoxicated
person. 


Footnote 19:

     The first question on the special verdict form read:

          If Rudolph Joseph was so intoxicated that he
could not exercise due care for himself, he could not act
intentionally when he took his own life.  Has the defendant State
of Alaska proved that it is more likely true than not true that
Rudolph Joseph died as a result of his intentional actions?

The verdict form then stated: "If you answered the above question
"yes", do not answer any further questions."


Footnote 20:

     See Beck v. State, Dep't of Transp. & Pub. Facilities, 837
P.2d 105, 114 (Alaska 1992) (holding that jury instructions involve
questions of law, to which we apply our independent judgment). 
Because it is a type of instruction, we apply the same standard in
reviewing a special verdict form.  See Manes v. Coats, 941 P.2d
120, 125 n.5 (Alaska 1997).


Footnote 21:

     627 P.2d 623 (Alaska 1981).


Footnote 22:

     677 P.2d 893 (Alaska 1984).


Footnote 23:

     See Kanayurak, 677 P.2d at 897; Wilson, 627 P.2d at 628.  See
also State, Dep't of Corrections v. Johnson, 2 P.3d 56, 59-61
(Alaska 2000) (discussing jailer's duty of care owed to prisoner
who fell down jail stairway).


Footnote 24:

     See Kanayurak, 677 P.2d at 897; Wilson, 627 P.2d at 628.  Cf.
Goodlataw v. State, Dep't of Health & Soc. Servs., 698 P.2d 1190,
1194 (Alaska 1985) (quoting from AS 33.30.020: "The commissioner
shall establish prison facilities . . . .  The commissioner shall
provide for the safety . . . of prisoners").


Footnote 25:

     Kanayurak, 677 P.2d at 899 (citing Wilson, 627 P.2d at 627,
628).


Footnote 26:

     See, e.g., Myers v. County of Lake, 30 F.3d 847, 852-53 (7th
Cir. 1994) (applying Indiana law); Haworth v. State, 592 P.2d 820,
824-25 (Hawaii 1979); Sauders v. County of Steuben, 693 N.E.2d 16,
19 (Ind. 1998); Thornton v. City of Flint, 197 N.W.2d 485, 493
(Mich. App. 1972); Murdock v. City of Keene, 623 A.2d 755, 756
(N.H. 1993); Restatement (Second) of Torts sec. 314A(4) (1965);
Jane
M. Draper, Annotation, Civil Liability of Prison or Jail
Authorities for Self-Inflicted Injury or Death of Prisoner, 79
A.L.R.3d 1210, 1216 (1977).  


Footnote 27:

     See Wilson, 627 P.2d at 628 (stating that jailer's duty "is
comparable to that owed by a common carrier to its passengers,
because prisoners, like passengers, are confined and cannot avail
themselves of normal opportunities for self-protection").


Footnote 28:

     See Charles J. Williams, Fault and the Suicide Victim:  When
Third Parties Assume a Suicide Victim's Duty of Self-Care, 76 Neb.
L. Rev. 301, 310 (1997); Restatement (Second) of Torts sec. 314A(4)
(1965) ("One who is required by law to take or who voluntarily
takes the custody of another under circumstances such as to deprive
the other of his normal opportunities for protection is under a
similar duty to the other as a common carrier owes its
passengers.").


Footnote 29:

     See Chizmar v. Mackie, 896 P.2d 196, 200 (Alaska 1995).


Footnote 30:

     See Wilson, 627 P.2d at 626-27.


Footnote 31:

     See id. at 627.


Footnote 32:

     See id. at 630.


Footnote 33:

     See id. at 632.


Footnote 34:

     Id. at 630-31 (footnotes omitted).


Footnote 35:

     See Wilson, 627 P.2d at 632.


Footnote 36:

     See id. at 631.


Footnote 37:

     See id. 


Footnote 38:

     Id. (emphasis added).


Footnote 39:

     Kanayurak, 677 P.2d at 894.


Footnote 40:

     See id.


Footnote 41:

     See id. at 899.


Footnote 42:

     See id. at 898-99. 


Footnote 43:

     Id. at 898 & n.10.


Footnote 44:

     Kanayurak, 677 P.2d at 898.


Footnote 45:

     Id. (quoting Wilson, 627 P.2d at 631).


Footnote 46:

     Id. at 898-99 (citing Wilson, 627 P.2d at 627, 628).


Footnote 47:

     See State v. Coon, 974 P.2d 386, 394 (Alaska 1999) ("'[T]he
judicial doctrine of stare decisis accords the prior holdings of
the highest court of this State precedential value while still
permitting the reconsideration of legal issues when conditions
warrant.'"(quoting State v. United Cook Inlet Drift Ass'n, 895
P.2d 947, 953 (Alaska 1995))).  


Footnote 48:

     See, e.g., In re Bergt, 241 B.R. 17, 31 (Bankr. D. Alaska
1999) ("[A] case is not binding precedent on a point of law where
the holding is only implicit or assumed in the decision but is not
announced.") (citation omitted); Maine Yankee Atomic Power Co. v.
United States, 44 Fed. Cl. 372, 376 (Fed. Cl. 1999) ("[A] case will
not be treated as binding precedent on a point of law where the
holding is only implicit or assumed in the decision but is not
announced.") (citation omitted); Natural Resources Defense Council
v. Southwest Marine, Inc., 39 F. Supp. 2d 1235, 1240 (S.D. Ca.
1999) (noting that implicit holding does not have precedential
effect); Cates v. Cates, 619 N.E.2d 715, 717 (Ill. 1993) ("[T]he
rule of stare decisis cannot be extended to implications from what
was decided in a former case."); see also 20 Am. Jur. 2d Courtssec.
153 (2000) ("[A] case is not binding precedent on a point of law
where the holding is only implicit or assumed in the decision but
is not announced."(citations omitted)).


Footnote 49:

     See, e.g., Scheele v. City of Anchorage, 385 P.2d 582, 583
(Alaska 1963).  


Footnote 50:

     See Wilson, 627 P.2d at 626.


Footnote 51:

     Id. at 631.


Footnote 52:

     See id. 


Footnote 53:

     Adkinson v. Rossi Arms Co., 659 P.2d 1236, 1240 (Alaska 1983)
(citing Wilson in support of that proposition); see also Burcina v.
City of Ketchikan, 902 P.2d 817, 820-21 (Alaska 1995) (holding that
public policy principle precluding plaintiffs who have been
convicted of crime from imposing liability on others for
consequences of that crime applied where mental patient was
convicted of setting fire to treatment facility).  In Shaw v.
State, 861 P.2d 566, 572 & n.9 (Alaska 1993), we held "guilt-in-
fact"to be an affirmative defense that, like the "traditional
defenses"of assumption of risk and comparative negligence, focuses
on "how plaintiffs might be responsible for their own injuries." 

          See also Ardinger v. Hummell, 982 P.2d 727, 735-36
(Alaska 1999) (noting that we have applied public policy rationale
for barring recovery only in cases involving serious criminal
conduct that intentionally threatened safety of others, such as
homicide, rape, and arson).


Footnote 54:

     See Wilson, 627 P.2d at 631.


Footnote 55:

     Id.


Footnote 56:

     See id. at 627-28.


Footnote 57:

     See id. at 631-32.


Footnote 58:

     See id. at 631 nn.13-15.


Footnote 59:

     See Kanayurak, 677 P.2d at 898-99.


Footnote 60:

     See id. at 899. 


Footnote 61:

     Id. at 897 (citing Wilson, 627 P.2d at 631).


Footnote 62:

     See id. at 897-98.


Footnote 63:

     See id. & n.11.


Footnote 64:

     The Josephs' attorney was a member of the law firm that
represented Kanayurak.  


Footnote 65:

     Emphasis added.


Footnote 66:

     See, e.g., Allen C. Schlinsog, Jr., The Suicidal Decedent:
Culpable Wrongdoer, or Wrongfully Deceased, 24 J. Marshall L. Rev.
463, 467, 477 (1991).


Footnote 67:

     See Restatement (Second) of Torts sec. 302B (1965); Myers v.
County of Lake, 30 F.3d 847, 852-53 (7th Cir. 1994) (applying
Indiana law and holding that intentional act of suicide was not
intervening cause that would defeat tort of negligently failing to
prevent suicide attempts); see also Loeb v. Rasmussen, 822 P.2d
914, 920 (Alaska 1991) (stating that "'intervening causes which lie
within the scope of the foreseeable risk, or have a reasonable
connection to it[,] are not superseding causes which relieve the
initial tortfeasor from liability,'"and holding that
"[c]haracterizing a minor's conduct in illegally consuming alcohol
and then driving an automobile as negligence, complicity, a
superseding cause or willful misconduct is little more than word
play") (citation omitted).


Footnote 68:

     See Hiibschman v. Valdez, 821 P.2d 1354, 1359 (Alaska 1991);
Hale v. O'Neill, 492 P.2d 101, 103 (Alaska 1971); Leavitt v.
Gillaspie, 443 P.2d 61, 67-68 (Alaska 1968). 


Footnote 69:

     This defense can defeat or reduce damage claims arising either
out of negligence or strict liability.  See Hiibschman, 821 P.2d at
1359; Koehring Mfg. Co. v. Earthmovers of Fairbanks, Inc., 763 P.2d
499, 506 n.10 (Alaska 1988); Prince v. Parachutes, Inc., 685 P.2d
83, 89 (Alaska 1984). 


Footnote 70:

     Restatement (Second) of Torts sec. 496B (1965) states: "A
plaintiff who by contract or otherwise expressly agrees to accept
a risk of harm arising from the defendant's negligent or reckless
conduct cannot recover for such harm, unless the agreement is
invalid as contrary to public policy."


Footnote 71:

     See Hiibschman, 821 P.2d at 1359. 


Footnote 72:

     Restatement (Second) of Torts sec. 503(3) cmt. c (1965)
states:

          In general, the effect of the plaintiff's
reckless disregard of his own safety is the same as that of his
ordinary contributory negligence. The exception to this rule,
stated in Subsection (3), is that where the plaintiff's conduct is
itself in reckless disregard of his own safety, it bars his
recovery not only from a defendant who has merely been negligent,
but also from one who 
          has acted in reckless disregard of the
plaintiff's safety. The greater fault in the one case is balanced
against the greater fault in the other.


Footnote 73:

     See Restatement (Second) of Torts sec. 314A cmt. d (1965)
("The
duty to protect the other against unreasonable risk of harm extends
to risks arising out of the actor's own conduct . . . ."). 


Footnote 74:

     Restatement (Second) of Torts sec. 503(3) cmt. c (1965).


Footnote 75:

     See AS 09.17.060; Kaatz v. State, 540 P.2d 1037, 1049 (Alaska
1975).


Footnote 76:

     Dissent at 43.


Footnote 77:

     Dissent at 49.


Footnote 78:

     See Dissent at 46-47.


Footnote 79:

     Dissent at 45.


Footnote 80:

     Dissent at 47.


Footnote 81:

     An expert opined that circumstances, apart from intoxication,
causing Lillian Kanayurak's "morbid state of mind"included:  "(a)
confinement, (b) humiliation, (c) fear for her children and (d)
isolation." Kanayurak, 677 P.2d at 897.  


Footnote 82:

     See Wilson, 627 P.2d at 628 ("This duty . . . is comparable to
that owed by a common carrier to its passengers, because prisoners,
like passengers, are confined and cannot avail themselves of normal
opportunities for self-protection."). 


Footnote 83:

     See D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628 P.2d
554, 555 (Alaska 1981) (citing Peter W. v. San Francisco Unified
Sch. Dist., 131 Cal. Rptr. 854, 859-60 (Cal. App. 1976)). 


Footnote 84:

     See Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 255
(Alaska 2000); Maddox v. River & Sea Marine, Inc., 925 P.2d 1033,
1036-40 (Alaska 1996).  


Footnote 85:

     See W. Page Keeton et al., Prosser and Keeton on the Law of
Torts sec. 65, at 452 (5th ed. 1984). 


Footnote 86:

     See id. sec. 56, at 375 ("[T]he law has persistently refused
to
impose on a stranger the moral obligation of common humanity to go
to the aid of another human being who is in danger . . . .");
Restatement (Second) of Torts sec. 314 (1965) ("The fact that the
actor realizes or should realize that action on his part is
necessary for another's aid or protection does not of itself impose
upon him a duty to take such action.").


Footnote 87:

     See Restatement (Second) of Torts sec. 314A(4) (1965); see
also Sandborg v. Blue Earth County, 601 N.W.2d 192, 196 (Minn. App.
1999) ("[T]he duty to protect a person from self-injury has been
found 'where an institution such as a hospital or jail has physical
custody and control of the person to be protected.'") (citation
omitted), rev'd on other grounds, 615 N.W.2d 61 (Minn. 2000).  Cf.
Clemets v. Heston, 485 N.E.2d 287, 291-92 (Ohio 1985) (holding that
duty to prevent suicide does not continue once prisoner is released
from custody).


Footnote 88:

     Restatement (Second) of Torts sec. 314A cmt. d (1965).


Footnote 89:

     See id. ("[The duty to protect] extends also to risks arising
. . . from the acts of third persons, whether they be innocent,
negligent, intentional, or even criminal.  It extends also to risks
arising from pure accident, or from the negligence of the plaintiff
himself . . . ."); cf. id. cmt. f (stating that custodian owes no
duty to give aid to person who is in the "competent"hands of his
friends).


Footnote 90:

     See Lucas v. City of Long Beach, 131 Cal. Rptr. 470, 474 (Cal.
App. 1976) ("Absent some possible special circumstances a jailer is
under no duty to prevent the latter from taking his own life.");
Pretty on Top v. City of Hardin, 597 P.2d 58, 61 (Mont. 1979)
(noting that "'[s]pecial circumstances' form the basis of virtually
every decision involving a jailer's liability for a prisoner's acts
of self-destruction."); 60 Am. Jur. 2d Penal and Correctional
Institutions sec. 208 (2000) (same).


Footnote 91:

     See, e.g., Vallejo v. Rahway Police Dep't, 678 A.2d 1135, 1140
(N.J. App. 1996) (rejecting the requirement that the prisoner be
"helplessly"intoxicated for prison to have a duty to prevent him
from harming himself and holding that a prisoner's mental illness,
prior suicide attempts, or mere intoxication could all trigger the
prison's duty).  The Vallejo court further noted that requiring the
prisoner to be "helplessly"intoxicated before the prison was
required to take any steps to prevent him from committing suicide
did not make any sense: 

          [W]e are not sure how helpless intoxication
has any relevance to a jailer's standard of conduct in the context
of a detainee's suicide. . . . We are at a loss as to how a person
who is so profoundly intoxicated that he is considered helpless can
be considered at risk for such a coordinated series of actions
[such as disrobing, fashioning a noose and securing the noose to a
stationary object]. 

Id.


Footnote 92:

     See Figueroa v. State, 604 P.2d 1198, 1203-04 (Haw. 1980)
("The duty of penal institutions and detention homes to exercise
reasonable care should extend to protection against suicide if such
an event is reasonably foreseeable. . . . Conversely, in the
absence of actual or constructive notice of the inmate's suicidal
behavior, there is no duty to prevent a suicide."(citations
omitted)); Gordon v. City of New York, 517 N.E.2d 1331, 1332 (N.Y.
1987) ("When prison authorities know or should know that a prisoner
has suicidal tendencies or that a prisoner might physically harm
himself, a duty arises to provide reasonable care to assure that
such harm does not occur."); see also Popham v. City of Talladega,
582 So. 2d 541, 543 (Ala. 1991); Sauders v. County of Steuben, 693
N.E.2d 16, 20 (Ind. 1998); Sudderth v. White, 621 S.W.2d 33, 35
(Ken. App. 1981); Hickey v. Zezulka, 487 N.W.2d 106, 110, 123
(Mich. 1992); Sandborg, 601 N.W.2d at 196-97; Murdock v. City of
Keene, 623 A.2d 755, 757 (N.H. 1993); City of Belen v. Harrell, 603
P.2d 711, 713 (N.M. 1979); Moats v. Preston County Comm'n, 521
S.E.2d 180, 189 (W. Va. 1999); cf. Restatement (Second) of Torts
sec.
314A cmt. f (1965) ("The defendant is not required to take any
action until he knows or has reason to know that the plaintiff is
endangered or is ill or injured.").


Footnote 93:

     See, e.g., Vallejo, 678 A.2d at 1140; Helmy v. Bebber, 335
S.E.2d 182, 186-87 (N.C. App. 1985).


Footnote 94:

     See ch. 26, sec. 14, SLA 1997, amending AS 09.17.900.


Footnote 95:

     Helmy, 335 S.E.2d at 186; see also Jane M. Draper, Annotation,
Civil Liability of Prison or Jail Authorities for Self-Inflicted
Injury or Death of Prisoner, 79 A.L.R.3d 1210 (1977).


Footnote 96:

     693 N.E.2d 16, 20 (Ind. 1998).


Footnote 97:

     Id. at 18 (citation omitted).


Footnote 98:

     30 F.3d 847 (7th Cir. 1994).


Footnote 99:

     See id. at 853.


Footnote 100:

     See id. at 848, 851.


Footnote 101:

     See id. at 848.


Footnote 102:

     See id. at 851.


Footnote 103:

     See id.


Footnote 104:

     See Myers, 30 F.3d at 851.  There was also strong evidence
weighing against a finding of negligence.  Steven testified that he
wanted to commit suicide and that he did his best to avoid
detection.  See id. at 852.


Footnote 105:

     See id. at 852-53.


Footnote 106:

     Id. at 852.


Footnote 107:

     Id. at 852-53.


Footnote 108:

     The court concluded that five of seven states considering
intentionality as a defense had rejected it at that time (as of
1994).  See id.


Footnote 109:

     Myers, 30 F.3d at 852.


Footnote 110:

     Williams, supra note 29, at 303 (citations omitted).


Footnote 111:

     We also note that under AS 09.50.250(1)'s grant of
discretionary function immunity, the state is immune from tort
liability for planning decisions involving policy formulation.  See
Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 259 (Alaska 2000).


Footnote 112:

     See AS 09.17.080.  As amended in 1997, the statute requires
apportionment of damages in "all actions involving fault of more
than one person." After amendment in 1997, AS 09.17.900 defines
"fault"to include "acts or omissions that are in any measure
negligent, reckless, or intentional toward the person . . . of the
actor or others, or that subject a person to strict tort
liability." The 1997 amendment added the word "intentional"to
this definition.  These amendments postdated Rudolph Joseph's
death.  We express no opinion whether damages could be allocated in
such a case for causes of action accruing before the effective date
of the 1997 amendment.  


Footnote 113:

     The Josephs do not argue that the instructions erroneously
told the jury how to determine whether a person is so intoxicated
as to be incapable of acting intentionally and we do not review
that aspect of their sufficiency.


Footnote 114:

     The Josephs offered (1) evidence that Rudolph Joseph was
intoxicated and that intoxicated prisoners pose a heightened
suicide risk; (2) evidence that he falsely denied prior
incarceration, a denial that might be attributed to remorse or
stress;  (3) trial testimony regarding the high suicide rate among
Native Alaskan prisoners, from the same expert who had offered an
equivalent affidavit in the Kanayurak case; and (4) evidence that
Rudolph Joseph was remorseful over his banishment from his village
and his assault on his cousin.


Footnote 115:

     See Kanayurak, 677 P.2d at 898 n.10; Wilson, 627 P.2d at 631
n.13.  In Wilson, we recognized that mental illness or drug
addiction could make one "incapable of exercising due care." Id.
Both Wilson and Kanayurak approvingly cited Thornton v. City of
Flint, 197 N.W.2d 485, 489 (Mich. 1972), in support of that
proposition.  In Wilson we described the Thornton case as follows:
"[The a]ct of plaintiff prisoner, who was [a] chronic alcoholic
suffering from delirium tremens, of diving from [the] top bunk in
his cell, 'although "intentional,"may not have been one of free
volition,' and [the] question of whether plaintiff could recover
was therefore for the jury." Wilson, 627 P.2d at 631 n.15.


Footnote 116:

     See Wilson, 627 P.2d at 631-32.


Footnote 117:

     See Kanayurak, 677 P.2d at 899.



                       FOOTNOTES (Dissent)


Footnote 1:

     See Falkenstein v. City of Bismarck, 268 N.W.2d 787, 790 (N.D.
1978) ("In most situations a death by suicide is not an actionable
event because, even though there may have been tortious conduct
preceding the suicide, the suicide is ordinarily considered as an
intentional act and not the result of the tort.  This relieves the
original actor of liability."); Lucas v. City of Long Beach, 131
Cal. Rptr. 470, 474 (Cal. App. 1976) ("The general rule is that a
jailer is not liable to a prisoner in his keeping for injuries
resulting from the prisoner's own intentional conduct.").


Footnote 2:

     See Restatement (Second) of Torts sec. 892 (1979); see also
Victor E. Schwartz, Comparative Negligence sec. 5.4(c) (3d ed.
1994)
("[S]ince consent cancels the wrongful element of a defendant's
intentional tort, a fortiori it would also do so with regard to
negligent conduct.").


Footnote 3:

     See, e.g., Halko v. New Jersey Transit Rail Operations, Inc.,
677 F. Supp. 135, 142 (S.D.N.Y. 1987); Restatement (Second) of
Torts sec. 455 (1965). 


Footnote 4:

     677 P.2d 893 (Alaska 1984).


Footnote 5:

     627 P.2d 623 (Alaska 1981).


Footnote 6:

     342 N.E.2d 468, 474 (Ill. App. 1976); see also City of Belen
v. Harrell, 603 P.2d 711, 714 (N.M. 1979) (holding jury question
presented as to whether prisoner who committed suicide had the
"capacity to exercise reasonable care . . . ,"because there was
evidence that prisoner's reasoning was impaired and his actions
were governed by impulses).


Footnote 7:

     Wilson, 627 P.2d at 631; see Kanayurak, 677 P.2d at 898. 


Footnote 8:

     State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996). 


Footnote 9:

     See, e.g., Dezort, 342 N.E.2d at 474; City of Belen, 603 P.2d
at 714.


Footnote 10:

     See, e.g., Lucas v. City of Long Beach, 131 Cal. Rptr. 470
(Cal. App. 1976). 


Footnote 11:

     See Restatement (Second) of Torts sec. 892A, cmt. 2 (1979).


Footnote 12:

     See Hager v. Tire Recyclers, Inc., 901 P.2d 948, 950-51 (Or.
App. 1995) (consent is an affirmative defense).  Judge Esch
recognized this in the present case for he instructed that
the burden was on the state to prove that Joseph died as a result
of his intentional actions.


Footnote 13:

     Cf. Restatement (Second) of Torts sec. 455 (1965) (explaining
that defendant is ordinarily responsible for self-injury committed
during delirium or insanity only if also responsible for bringing
about the delirium or insanity).


Footnote 14:

     See William L. Prosser, Handbook of the Law of Torts sec. 18,
at
101 (4th ed. 1971) ("It is a fundamental principle of the common
law that volenti non fit injuria -- to one who is willing, no wrong
is done.  The attitude of the courts has not, in general, been one
of paternalism.").


Footnote 15:

     This example is taken from Schwartz, supra note 2,
sec. 5.4(c),
at 128 ("For example, if a plaintiff knowingly and voluntarily
walks in front of the defendant's speeding car, he is deemed to
have consented to the injury he receives, no comparison is made and
his claim is barred.").  Accord Daniell v. Ford Motor Co., 581 F.
Supp. 728, 729 (D.N.M. 1984) (holding, where a failed suicide
sought to recover from an automobile manufacturer for negligently
designing a trunk without an internal release mechanism, that
"[t]he overriding factor barring plaintiff's recovery is that she
intentionally sought to end her life by crawling into an automobile
trunk from which she could not escape"). 


Footnote 16:

     Foreseeability as a winnowing principle is not a good
substitute for intentionality with the incapacity exception.  A
suicide that is the product of unimpaired deliberation, and thus
barred from a tort recovery, may be foreseeable for any number of
specific reasons, such as prior attempts or statements of the
prisoner.  


Footnote 17:

     See Kaatz v. State, 540 P.2d 1037 (Alaska 1975).


Footnote 18:

     As amended AS 09.17.900 provides:

               In this chapter, "fault"includes acts or
omissions that are in any measure negligent, reckless, or
intentional toward the person or property of the actor or others,
or that subject a person to strict tort liability.  The term also
includes breach of warranty, unreasonable assumption of risk not
constituting an enforceable express consent, misuse of a product
for which the defendant otherwise would be liable, and unreasonable
failure to avoid an injury or to mitigate damages.  Legal
requirements of causal relation apply both to fault as the basis
for liability and to contributory fault.


Footnote 19:

     See ch. 26, sec. 55, SLA 1997.


Footnote 20:

     See Schwartz, supra note 2, at 128 ("The notion of volenti nonfit 
injuria is so deeply entrenched in American law that it would
be unlikely that a court would interpret the comparative negligence
statute to abolish the consent defense.").