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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kodiak Island Borough v. Roe (2/7/2003) sp-5663

Kodiak Island Borough v. Roe (2/7/2003) sp-5663

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA
                                

KODIAK ISLAND BOROUGH,   )
                                )      Supreme  Court   Nos.   S-
10058/10137
     Appellant/Cross-Appellee,     )
                              )    Superior Court Nos.
     v.                       )    3KO-97-452 CI/3KO-97-467 CI
                              )
JOAN ROE, on behalf of her ward,   )    O P I N I O N
                              )
      Appellee/Cross-Appellant.     )    [No. 5663 - February  7,
2003]
________________________________)


          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Kodiak,
          Donald D. Hopwood, Judge.

          Appearances:   James D. Gilmore and  Kristina
          Sue  Mason, Gilmore & Doherty, Anchorage, for
          Appellant/Cross-Appellee.   Kirsten  Tinglum,
          Donna  J.  McCready, and William S. Cummings,
          Ashburn  &  Mason, P.C., for  Appellee/Cross-
          Appellant.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Carpeneti, Justices.   [Bryner,
          Justice, not participating.]

          EASTAUGH, Justice.

I.   INTRODUCTION

           A civil jury found two Kodiak Island Borough employees

liable for intentional torts they committed against a resident at

a  borough-operated facility for developmentally disabled  women.

The  jury also found the borough negligent for failing to prevent

the  employees' intentional torts.  The trial court  declined  to

permit  the jury to allocate fault and apportion damages  between

the  negligent  and  intentional  tortfeasors,  interpreting  the

apportionment  statutes  then  in  effect  to  preclude  such  an

allocation.   Because the applicable apportionment statutes  were

silent  on  the issue of allocating fault in this situation,  and

because  the  common  law disallowed such  an  apportionment,  we

affirm  the  trial  court's  decision  precluding  apportionment.

Because  we  find  no reversible error on the  other  issues  the

borough appeals, we affirm the judgment.

II.  FACTS AND PROCEEDINGS

           C.E.  is a developmentally disabled woman who  suffers

from cerebral palsy.1  C.E. functions intellectually and socially

at the level of a ten- to twelve-year-old child with an IQ in the

lower-sixties.    In  1990  she  moved  into  a  semi-independent

apartment  which was part of a Kodiak Island Borough  residential

treatment  program.2   C.E.'s apartment  was  next  door  to  the

residential  program's Crisis Respite Unit.  The  Crisis  Respite

Unit  staff  had  keys  to  the semi-independent  apartments  and

administered medication to the women who lived there.

            Jacob   Simeonoff  and  Dana  McNair   were   borough

residential program employees in 1990.  Simeonoff was hired after

twice  residing in the residential program for mental health  and

substance abuse problems, and after having been convicted twenty-

eight  times of criminal offenses, including felony assault.   He

was  hired  in  1988 as a Crisis Respite Unit staff member,  even

though  the director of the residential program knew at the  time

of  Simeonoff's history.  Previously employed through  associated

programs  in  the 1980's, McNair was hired in 1991  as  a  skills

trainer  in charge of securing the residential program residents'

safety,  health,  and  welfare, and periodically  filled  in  for

Crisis Respite Unit staff.

          C.E. became pregnant in 1991 and gave birth to M.E.  In

1995,  under  pressure from the Alaska Child Support  Enforcement

Division  to establish the paternity of her child, C.E.  revealed

that  she  had  had intercourse with Simeonoff  and  McNair.  DNA

testing determined that Simeonoff was M.E.'s father.

           Joan  Roe,  C.E.'s  mother, filed  a  lawsuit  against

Simeonoff,  McNair, and the borough alleging among  other  things

that  the  borough  negligently hired,  retained,  promoted,  and

supervised  Simeonoff and McNair.3  Trial was held in late  2000.

The  trial  jury found that the borough was negligent in  hiring,

retaining,  promoting, or supervising Simeonoff and  McNair,  and

that  the negligence was a substantial factor in causing harm  to

C.E.   It  found that Simeonoff and McNair intentionally  touched

C.E. four times and that the touching was a substantial factor in

causing  harm to C.E.  The jury found that C.E. suffered $350,000

in  economic damages and $1 million in non-economic damages.  The

trial  court  then  entered judgment in the principal  amount  of

$1,350,000 against the borough.

          The borough appeals, raising various issues.4

III. DISCUSSION

     A.   The Trial Court Properly Declined To Allow the Jury  To
          Allocate  Fault  and  Apportion  Damages  Between   the
          Negligent and Intentional Tortfeasors.
          
           The  borough argues that it was error to  prevent  the

jury  from  apportioning fault between intentional and  negligent

tortfeasors.   The question whether fault could be allocated  and

damages apportioned between negligent and intentional tortfeasors

turns  on  the interpretation of former AS 09.17.080  (1989)  and

former  AS  09.17.900 (1986) and the common law of  torts  as  it

existed in Alaska in 1991, when these torts were committed.5   We

discern no error.6

           Roe  filed a motion to establish the law of the  case,

arguing  that  the borough had a special protective  relationship

with   C.E.,  and  that  it  negligently  failed  to  prevent   a

foreseeable  harm  which it had a duty to prevent.   Roe  further

argued  that under Alaska Statutes then in effect, and under  the

Restatement  (Second) of Torts  315, the borough  should  not  be

able   to  "escape"  liability  by  shifting  liability   to   an

intentional third party tortfeasor.7

          The superior court granted Roe's motion.  It considered

AS  09.17.080 and .900 and the history of tort reform in  Alaska,

and  determined  that  while not currently  the  law  in  Alaska,

apportionment  between negligent and intentional tortfeasors  was

not  permitted  prior to 1997, when the legislature  specifically

redefined  "fault" for purposes of the apportionment  statute  to

provide  for  such  allocations.  The superior  court  relied  on

policy arguments against apportionment discussed by the Tennessee

Supreme Court in Turner v. Jordan,8 and on our decision in  Borg-

Warner Corp. v. Avco Corp.,9 in which we stated that section .900

clearly  contemplated  apportionment  between  all  unintentional

tortfeasors.

           On  appeal  the borough advances statutory and  policy

arguments, and points to the history of joint liability in Alaska

to support its claim that the trial court erred by preventing the

jury  from apportioning damages between the borough and  the  two

intentional  tortfeasors,  Simeonoff  and  McNair.   The  borough

agrees   with  the  trial  court  that  whether  allocation   was

appropriate turns on the interpretation of AS 09.17.080 and .900,

but  reads  the  history of joint liability in Alaska  and  voter

intent to favor apportionment.

          In characterizing Alaska's experience with tort reform,

the  borough  observes that at common law, and in  Alaska  before

1970, joint tortfeasors were jointly and severally liable and did

not  have  a  right  of contribution against  each  other.10  The

legislature  granted joint tortfeasors the right of  contribution

in  1970  by  enacting  the  Alaska  Uniform  Contribution  Among

Tortfeasors  Act.11   That act explicitly  precluded  intentional

tortfeasors from seeking contribution.12  Tort reform legislation

in  1986  amended  the contribution act, and  required  that  the

liability of joint tortfeasors be determined by each tortfeasor's

percentage of fault.13  In that year the legislature also enacted

AS  09.17.900,  which  defined "fault" to  include  negligent  or

reckless acts or omissions, but which did not mention intentional

acts.14   In  1988  Alaska voters passed Ballot  Measure  No.  2,

thereby  replacing joint and several liability with pure  several

liability.   But  Ballot  Measure  No.  2  did  not  modify   the

definition  of "fault" contained in section .900.   In  1997  the

legislature amended the definition of "fault" in section .900  to

explicitly include intentional acts.15

           The borough argues that the 1997 amendment which added

a  specific  reference to "intentional" acts  in  section  .900's

definition of fault was a clarification of existing law, and that

the  definition  encompassed intentional  acts  even  before  the

amendment.   The  borough suggests that section .900  has  always

been   inclusory,  even  though  it  did  not  contain  the  word

"intentional" until 1997, and that the passage of Ballot  Measure

No.  2  in 1988 demonstrated that the voters clearly intended  to

hold  each  tortfeasor  responsible for  only  that  tortfeasor's

percentage  of fault, regardless of whether the tortfeasor's  act

was   negligent,  reckless,  or  intentional.   It  argues   that

assigning  an intentional tortfeasor's liability to  a  negligent

actor  would  defeat  voter intentions.   It  also  asserts  that

allowing  the  allocation it sought would not  have  reduced  the

incentive  to  engage  in  non-negligent  conduct,  because,   it

reasons,  the  prospect  of  being  held  liable  for  their  own

negligence  would  encourage actors to  use  reasonable  care  to

prevent their employees from committing intentional torts.

          Roe responds by referring to the "plain meaning" of the

statute   and  discussing  established  principles  of  statutory

interpretation.   She  argues  that  because  the  definition  in

section  .900 before 1997 did not explicitly include  intentional

conduct,  the liability allocation excluded intentional  conduct.

She  relies  on our holding in Borg-Warner, observes that  Ballot

Measure No. 2 did not change section .900, and argues that  until

1997, only unintentional tortfeasors were parties at "fault"  for

allocation purposes. She also concludes that Ballot Measure No. 2

only  changed  how damages would be allocated -  from  joint  and

several  liability to pure several liability - not  between  whom

they would be allocated.

           Roe  also  contends that the borough  had  a  duty  to

prevent  foreseeable  harm to C.E. under  agency  principles  and

nondelegable  duty  theory;  the  borough  responds  that   these

arguments  were  unsupported, dropped in Roe's  abandoned  cross-

appeal, and waived because she failed to raise them below.  We do

not  need  to  consider  whether Roe preserved  these  arguments,

because  the  issue presented here turns on the language  of  the

statutes, the history of tort reform, and the state of the common

law as of 1991, when Roe's cause of action arose.

           We think Roe and the trial court correctly interpreted

the  apportionment statutes as they read before  the  legislature

enacted the 1997 amendment.  Before 1997 the statutes were silent

on the issue of apportioning intentional conduct, and even though

the  Governor's  Advisory  Task Force  on  Civil  Justice  Reform

labeled   its   proposed   redefinition   of   section   .900   a

"clarification," we think the amendment altered the status quo.16

Despite   these   characterizations  of  the   amendment   as   a

"clarification,"  we  conclude that amending  the  definition  to

include intentional conduct substantively altered the status quo.

The  legislative history was equivocal.  The same  documents  the

borough relies on also state that the task force was charged with

suggesting   a   series   of   "Civil   Justice   Reforms,"   not

"clarifications."   Similarly,  the  amended   redefinition   was

introduced  as part of a 1997 "Tort Reform Bill."  Moreover,  the

Sponsor  Statement introducing the bill spoke  of  "a  compelling

need  for substantial reforms in the civil justice system."   The

legislative  history  does  not justify  a  conclusion  that  the

amendment   merely  confirmed  that  the  definition  encompassed

intentional conduct.  We assume that words added to a statute are

not  mere surplusage.  Kodiak Island Borough v. Exxon Corp.,  991

P.2d  757,  761  (Alaska 1999) ( "We must also presume  that  the

legislature  intended every word, sentence,  or  provision  of  a

statute  to  have some purpose, force, and effect,  and  that  no

words  or  provisions are superfluous.  Furthermore, we generally

presume  that an amendment to an unambiguous statute indicates  a

substantive  change in the law.") (internal quotation  marks  and

footnote omitted)).   Because the apportionment statutes did  not

apply  to intentional conduct before 1997, the common law governs

this dispute.17

          The common law as it existed in many jurisdictions, and

as  it existed in Alaska before 1997, is accurately described  by

the  Restatement  (Third)  of Torts: Apportionment  of  Liability

14, which states:

                A person who is liable to another based
          on  a  failure to protect the other from  the
          specific  risk  of  an  intentional  tort  is
          jointly and severally liable for the share of
          comparative  responsibility assigned  to  the
          intentional  tortfeasor in  addition  to  the
          share  of comparative responsibility assigned
          to the person.[18]
          
           Although  this  Restatement section was  published  in

2000,  it  accurately describes the status of the common  law  on

this  topic as it stood for years before publication.19  It  also

specifically  addresses  the topic of  allocating  fault  between

negligent  tortfeasors  and  intentional  tortfeasors  when   the

negligent  act consists of failing to protect against a  specific

risk  of an intentional tort in jurisdictions, like Alaska,  that

recognized   principles  of  comparative   responsibility.    The

Restatement section accurately portrays the common law as it  was

in  Alaska before 1997, when the legislature amended section .900

and changed the law.

           The  borough  failed  here to protect  C.E.  from  the

foreseeable  risk that Simeonoff and McNair would sexually  abuse

her.   Both parties' experts agreed that the duty to protect  the

residents   of   this  program  lay  with  the  caretaker.    The

residential   program  directors  knew  that   staff   abuse   of

developmentally disabled residential clients was  a  risk.   They

knew  of  Simeonoff's and McNair's backgrounds and yet gave  them

unobstructed   access,  through  their  jobs,   to   particularly

vulnerable   potential  victims.   The  borough   can   be   held

responsible for the consequences of the intentional torts of  its

employees in this case because the jury found that it negligently

failed to protect C.E. from the specific risk of Simeonoff's  and

McNair's intentional torts.

           We  recognize  that the 1997 amendment  displaced  the

common  law and that section .900 may now permit an apportionment

that  is  contrary to Restatement (Third) of Torts: Apportionment

of Liability  14.20  But before 1997 the common law on this issue

governed.  The trial court accordingly did not err in refusing to

permit  the jury to apportion fault between the borough  and  the

intentional tortfeasors.

          B.   The Trial Court Properly Instructed the Jury as to
          Intentional  Conduct Without Issuing an Instruction  on
          Negligence or Recklessness.
          
           By the time her case went to the jury, Roe had dropped

her  negligence  and  recklessness claims against  Simeonoff  and

McNair,  and  was  alleging only intentional torts  as  to  them.

Nevertheless,  the  borough  proposed  a  special  verdict   form

question  that would have asked the jury whether either Simeonoff

or  McNair was negligent or reckless.  The borough argued that AS

09.17.080  required  trial courts in actions  involving  multiple

tortfeasors  to instruct the jury on negligence and recklessness.

The  trial  court rejected the borough's proposals  and  did  not

instruct  the  jury to consider whether Simeonoff or  McNair  had

been  negligent or reckless.  The borough argues on  appeal  that

this denied it the opportunity to have the jury allocate fault to

Simeonoff and McNair.

          We review jury instructions21 and special verdict forms22

de novo.  We will reverse for instructional error only if a party

suffered prejudice.23  We review de novo whether a party suffered

prejudice.24

           We  agree with Roe that the issue was immaterial.  Had

the  jury found Simeonoff or McNair liable for anything less than

an  intentional  touching, they would not have  been  liable  for

assault, the only tort claim against them Roe took to the jury.25

There  was no reason for the jury to consider claims Roe  was  no

longer  pursuing.  The borough was not prejudiced  by  the  trial

court's  ruling on this issue because there would  have  been  no

fault to allocate and damages to apportion had the jury not found

that Simeonoff and McNair acted with intent.

          C.    The Trial Court Properly Ruled that Each Incident

          of  Sexual  Contact  Permitted  a  Separate  Claim  for

          Emotional Distress.

           Roe  moved before trial for a declaration of law  that

each  sexual  assault  against C.E. was a separate  incident  for

purposes  of the AS 09.17.010 damages cap.26 The borough  opposed

the  motion, arguing that it was premature because the record did

not sufficiently establish how many incidents there had been, and

because  Roe did not plead a separate tort claim for each alleged

assault.  The trial court ruled that the legislature intended  to

allow  damage  awards  for  multiple incidents  of  assault,  and

interpreted  the  statute  to allow  an  award  for  each  sexual

assault.   The  court instructed the jury that  it  could  assess

damages  for  each  instance of Simeonoff's  or  McNair's  sexual

contact.

           The  borough now argues that the court's legal  ruling

and  the corresponding jury instruction based on that ruling were

erroneous.  It argues that the instruction was erroneous  because

it  was  predicated on claims that Roe had abandoned  before  the

case went to the jury.  The borough asserts that the word "claim"

in  the statute should be understood to mean the "legal basis for

recovery,"  and  that  damages should have been  limited  to  the

"claim"  against  the borough that went to the jury  -  that  the

borough  negligently  hired, retained,  promoted,  or  supervised

Simeonoff and McNair.

           Roe  asserts that this court should affirm  the  trial

court's ruling and jury instruction because the plain language of

the statute applied the cap to each incident of assault.

           We  agree that each event was a separate incident  for

purposes  of calculating damages.  We agree with the trial  court

that  the  plain language of the statute is clear.   The  statute

limited  damages  awards  "for each claim  based  on  a  separate

incident  or  injury."27  Absent any legislative history  to  the

contrary,  the  plain  language of  the  statute  compels  us  to

conclude  that the legislature intended to allow multiple  claims

of  injury  based on multiple incidents.28  The jury  found  four

incidents  of assault and permissibly decided that each  separate

incident caused a separate injury.  The trial court did  not  err

in  allowing  the jury to consider whether to award  damages  for

each assault.

          D.    Instructing the Jury on the Non-economic  Damages
          Cap Was Harmless Error.
          
           The  trial  court instructed the jury that,  under  AS

09.17.010,29 it could not award more than $500,000 in non-economic

damages   for  each  instance  in  which  Simeonoff   or   McNair

"intentionally touched [C.E.] in a harmful or disagreeable  way."

The court reasoned that "it's the jury that does the awarding" of

damages  and that it would be deceptive not to tell the  jury  of

the limit on the amount the plaintiff could be awarded.

           The  borough  challenges the instruction on  statutory

grounds  and also claims that the erroneous instruction  rendered

the  cap  unconstitutional.  First, it argues that  although  the

statute in effect when this cause of action accrued was silent on

whether  trial courts should instruct on the cap,30 the statutory

term  "awarded" indicated that the cap should have  been  applied

after  the  jury  reached its verdict, not  by  the  jury  during

deliberations.  Second, the borough asserts that the  instruction

denied  it  the right to a jury trial by removing  the  issue  of

damages  from the fact-finder.  The borough claims  that  it  was

prejudiced  because  revealing the cap to the  jury  produced  an

"anchoring"   effect  which  limited  the   jury's   ability   to

independently assess C.E.'s damages.

           Roe  responds that the instruction was not  explicitly

prohibited,  that the jury did decide the issue of  damages,  and

that  the instruction did not prejudice the borough.  She  points

out  that  the  award was ultimately lower than the  amount  C.E.

requested and which the cap allowed.

          We agree with the borough that it was error to instruct

on  the  damages cap.  The legislature may limit  the  amount  of

damages  that can be awarded, but it is for the jury to determine

the  extent  of the plaintiff's injury and the damage award  that

will  make her whole.  Instructing the jury on the cap interferes

with these responsibilities.  We recently ruled in Central Bering

Sea  Fishermen's Association v. Anderson that instructing a  jury

on   punitive  damages  caps  "carried  a  substantial  risk   of

suggesting  the  range of appropriate punitive  awards."31   That

observation   also  applies  to  caps  relating  to  compensatory

damages.

           Nevertheless,  we conclude here as we did  in  Central

Bering Sea that the error does not warrant reversal.32  First, as

in  Central Bering Sea, the trial court's ruling was a matter  of

first impression and there was no clear guidance available on the

issue.  The  jury's verdict in this case preceded publication  of

Central  Bering  Sea by nearly two years.  Second,  Roe  did  not

exploit  the error by arguing that the cap should guide the  jury

in  considering appropriate awards.  Third, the jury  permissibly

found  four separate incidents of assault, which meant that  more

than one cap applied.33  And fourth, the jury's non-economic award

of $1,000,000 was half the total amount allowable under the caps.

This  makes  it  unlikely  that  the  erroneous  cap  instruction

affected the damage award.

                      E.    The  Trial  Court  Did  Not  Err   in
               Permitting   a  Special  Damage  Award   for   the
               Extraordinary Costs of Raising M.E.
               
          Roe moved before trial to establish the law of the case

to  allow  her  to argue for special damages in conjunction  with

raising  M.E., the child of C.E.  The superior court allowed  Roe

to  argue  for these extraordinary expenses, and the  jury  found

$350,000 in economic damages.

          The borough argues on appeal that the trial court erred

in  allowing  these  special damages because the  "extraordinary"

costs  a developmentally disabled woman would incur in raising  a

healthy  child were not the product of the borough's  negligence.

The borough argues that C.E.'s parental economic responsibilities

were  caused by deliberate choices made by C.E., Roe, and  C.E.'s

former  guardian - not by the borough's negligence.   It  asserts

that  it  should  not have to pay child-rearing  expenses  beyond

conventional tort damages, which it argues should be tailored  to

compensate  the  tort  victim  for injuries  resulting  from  the

tortious  conduct.   The borough argues that  this  situation  is

governed  by  Poor v. Moore34 and M.A. v. United States,35  which

explicitly   precluded  recovery  of  damages  for  child-raising

expenses.  It further argues that the borough's taxpayers  should

not  have to bear the costs which parents must bear.  The borough

contends  that to hold otherwise would inspire other  parents  to

file suit to recover for the extraordinary expenses that everyone

encounters while raising a child.

           Roe  responds that she was not claiming  the  everyday

support  damages   prohibited in Poor and M.A.,  but  rather  the

segregated costs C.E. uniquely will encounter as a result of  her

own  disabilities.  Roe notes that the jury was  instructed  that

its  economic  loss award was limited to those  costs  that  were

"extraordinary  due  to  C.E.'s  disabilities,"  and  should  not

include  the  "ordinary costs of raising a child."   She  further

argues  that the borough should not be allowed to avoid liability

simply because C.E. reasonably decided not to abort her pregnancy

or  put her child up for adoption.  She argues that because  they

will  remain  responsible for the substantial ordinary  costs  of

raising  a  child,  there is no risk that  other  developmentally

disabled  women  will  decide whether to  keep  and  raise  their

children based on whether they might recover a similar award.

          Under the circumstances of this case, we agree with the

trial  court and affirm this special damage award.  This case  is

distinguishable  from  Poor and M.A.  because  C.E.  sought  only

"extraordinary"  damages,  as opposed  to  ordinary  expenses  of

raising  the  child.  In Poor we considered a certified  question

from  the  United States District Court about a mother's  damages

claims   against   her  biofeedback  therapist   who   tortiously

impregnated  her.  We agreed with the decision of the  California

Court  of  Appeal in Barbara A. v. John G.,36 and held  that  the

mother  could  not recover damages for the cost  of  raising  the

child  because the fact a tort caused the child's conception  did

not  relieve  the  mother of her statutory duty  to  support  her

child.37  We were concerned that permitting the damages the mother

sought would reduce the parents' duty of support, and might  harm

a child who later learned of the circumstances of the award.38

           In  M.A.  we  applied  similar  reasoning  and  denied

recovery of child-raising expenses to a minor mother whose doctor

negligently failed to diagnose her pregnancy.39  In that  context

we were also concerned that a contrary ruling would unduly affect

the  decisions of pregnant women about whether to have and  raise

their children.40  We held that the mothers could recover the tort

damages for proximately caused injuries but "[b]eyond that point,

no  compensation for expenses or other damages related to rearing

a healthy child may be allowed."41

           Here,  Roe  offered the testimony of a  rehabilitation

nurse  and vocational specialist who presented a "life care plan"

segregating  the ordinary costs of raising M.E. from  the  unique

costs  C.E.  would  incur  as a result  of  C.E.'s  disabilities,

including  the  cost  of special parenting  skills  training  and

counseling for C.E. to deal with the stress of being a parent.

          The policy considerations discussed in Poor and M.A. do

not  apply here.  Developmentally disabled women are unlikely  to

make  child-bearing  and  child-rearing decisions  based  on  the

possibility they may recover extraordinary costs should they file

suit - especially because they will still be responsible for  all

ordinary   child-rearing   expenses.    Moreover,   recovery   of

extraordinary  damages in this situation  is  unlikely  to  cause

C.E.'s child to suffer harm or feel unwanted.  The sort of  costs

awarded  here  can  be  segregated  and  distinguished  from  the

ordinary and unrecoverable costs, and there is little fear of the

systemic  cost-shifting  the borough envisions.   We  accordingly

hold  that  the  trial court properly allowed the jury  to  award

damages  for  C.E.'s extraordinary costs associated with  raising

M.E.

          F.    The  Trial Court Did Not Abuse Its Discretion  by
          Admitting into Evidence One Page of a Deposition.
          
            The  former  director  of  the  residential  program,

Kathleen  Addison, testified telephonically at  trial  after  the

jury  saw her video-taped deposition.  When Addison testified  at

trial  that  she  did  not remember making  a  statement  at  her

deposition, Roe attempted to impeach Addison with the  deposition

statement.  Addison ultimately agreed that she must have made the

statement.   Roe  moved  into  evidence  the  page  of  Addison's

deposition containing the disputed statement.  Over the borough's

objection,  the  court  received the  single  page  of  Addison's

deposition  into  evidence and allowed the jury  to  consider  it

during its deliberations.

           The  borough  argues on appeal that it was  reversible

error to admit the statement into evidence.  It acknowledges that

the  trial  court  had  discretion to  admit  prior  inconsistent

statements  if the proper foundation was laid,42 but argues  that

the  court  should  not  have admitted this  page  into  evidence

because  the  witness  admitted making the prior  statement.   It

argues that it was prejudiced because the deposition page allowed

the jury to give undue weight to a mistake of a critical witness.

          We review a trial court's evidentiary rulings for abuse

of  discretion.43  Admitting the page into evidence did not abuse

the  court's discretion.  And the borough does not show that  the

page  contained irrelevant or otherwise harmful material, or that

its  contents could have somehow unduly influenced the  jury  and

prejudiced the borough.  We discern no error.

IV.  CONCLUSION

          We therefore AFFIRM the judgment.

_______________________________
1     Although  this appeal turns on legal issues, on  appeal  we
take all permissible factual inferences in favor of the appellee,
the party who prevailed at trial.
2     The  borough  provided various services including  housing,
mental  health,  and assisted-living services, and  taught  basic
living  and social interaction skills to developmentally disabled
and  mentally ill residents under the umbrella of its residential
treatment  programs.  The parties are not consistent in referring
to this "RTP" as the borough's "Residential Treatment Program" or
"Residential Training Program."  Our analysis does  not  turn  on
this  distinction, and we refer to it throughout as the borough's
"residential program."
3     Joan Roe, the named plaintiff, is C.E.'s mother.  Two suits
were  originally  filed  on  C.E.'s  behalf.   Those  cases  were
consolidated  and Roe was substituted as C.E.'s  legal  guardian.
Roe's  initial  complaint alleged individual  emotional  distress
claims that were later dismissed.  These were the only claims Roe
brought  in  her  individual capacity, and  she  was  accordingly
dismissed as an individual plaintiff.
4     Roe  initially commenced a cross-appeal but "abandoned  all
points  on  cross-appeal"  in  a  notification  filed  after  she
submitted   her  brief  on  January  10,  2002.   We  accordingly
dismissed the cross-appeal.
5    Former AS 09.17.080 (1989) stated:

          Apportionment  of  damages.   (a)    In   all
          actions  involving fault  of  more  than  one
          party  to  the action, including  third-party
          defendants and persons who have been released
          under   AS   09.16.040,  the  court,   unless
          otherwise   agreed  by  all  parties,   shall
          instruct   the   jury   to   answer   special
          interrogatories  or, if  there  is  no  jury,
          shall make findings, indicating
          (1)   the  amount  of damages  each  claimant
          would  be entitled to recover if contributory
          fault is disregarded; and
          (2)  the percentage of the total fault of all
          of   the  parties  to  each  claim  that   is
          allocated to each claimant, defendant, third-
          party  defendant,  and person  who  has  been
          released from liability under AS 09.16.040.
          (b)  In determining the percentages of fault,
          the  trier  of fact shall consider  both  the
          nature of the conduct of each party at fault,
          and the extent of the causal relation between
          the  conduct  and the damages  claimed.   The
          trier of fact may determine that two or  more
          persons  are to be treated as a single  party
          if  their conduct was a cause of the  damages
          claimed  and the separate act or omission  of
          each person cannot be distinguished.
          (c)   The court shall determine the award  of
          damages  to each claimant in accordance  with
          the findings, subject to a reduction under AS
          09.16.040,  and enter judgment  against  each
          party liable.  The court also shall determine
          and   state  in  the  judgment  each  party's
          equitable  share  of the obligation  to  each
          claimant  in  accordance with the  respective
          percentages of fault.
          (d)   The  court shall enter judgment against
          each  party  liable on the basis  of  several
          liability  in  accordance with  that  party's
          percentage of fault.
          
          Former AS 09.17.900 (1986) stated:

          Definition.  In this chapter "fault" includes
          acts  or  omissions that are in  any  measure
          negligent  or reckless 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.
6     We  review  de  novo questions of law,  including  a  trial
court's  interpretation of a statute, adopting the  rule  of  law
most  persuasive in light of precedent, reason, and policy.  Guin
v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
7    Restatement (Second) of Torts  315 (1965) states:

          There is no duty so to control the conduct of
          a third person as to prevent him from causing
          physical harm to another unless
          (a)   a  special relation exists between  the
          actor  and  the third person which imposes  a
          duty  upon  the  actor to control  the  third
          person's conduct, or
          (b)   a  special relation exists between  the
          actor  and the other which gives to the other
          a right to protection.
          
Roe  cites Division of Corrections v. Neakok, 721 P.2d 1121, 1126
(Alaska 1986), for the proposition that  315 reflects the law  in
Alaska.

8     957  S.W.2d  815,  823 (Tenn. 1997) (citing  potential  for
perverse  incentive  effects apportioning  damages  in  analogous
situation, and difficulty of comparing relative culpability  when
intentional  conduct  is foreseeable risk  created  by  negligent
actor).
9    850 P.2d 628, 633 (Alaska 1993).
10    See Arctic Structures, Inc. v. Wedmore, 605 P.2d 426, 430-33
(Alaska 1979).
11     Ch. 80,  1, SLA 1970 (codified as amended at AS 09.16.010-
.060).
12    Former AS 09.16.010(c) (1985).
13    Former AS 09.17.080 (1986).
14     Ch.  139,  1, SLA 1986.  See supra note 5 for text  of  AS
09.17.900 (1986).

15     AS 09.17.900 (1997) provides in pertinent part:  "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."
16     The Governor's Advisory Task Force on Civil Justice Reform
recommended in 1996 amending the definition of "fault"  contained
in  section  .900.   The  task force's  report  to  the  governor
entitled    the   proposed   modification   to   section    .900,
"Clarification   Of   Liability  For  Intentional   Acts."    The
accompanying  commentary  similarly  implied  that  the  proposed
amendment   would  "clarify"  section  .900's  applicability   to
intentional torts.  The proposed amendment was presented  to  the
legislature  as  the  task  force recommended,  and  the  Sponsor
Statement  introducing  the  bill  reiterated  the  task  force's
suggestion  that  the amended definition would "clarify"  section
.900.   See Report of the Governor's Advisory Task Force on Civil
Justice Reform, at 51 (1996); Sponsor Statement of SSHB 58 (JUD):
Tort Reform Bill.

17     See  Alaska Fed'n for Cmty. Self-Reliance v.  Alaska  Pub.
Util.  Comm'n, 879 P.2d 1015, 1022 (Alaska 1994) (applying common
law  where  statute was silent on number of votes  necessary  for
body  to  take action); Alex v. State, 484 P.2d 677, 678  (Alaska
1971) (looking to common law to define "escape" absent definition
in  escape  statute); Herrin v. State, 449 P.2d 674, 676  (Alaska
1969)  (imputing common law intent where statute  was  silent  on
intent requirement).
18     Restatement (Third) of Torts: Apportionment  of  Liability
14 (2000).
19     The  Reporter's Note to Comment b of section 14  makes  it
clear  that  the  logic of this section is grounded  on  pre-1997
precedent,  and  is  consistent with decisions  of  jurisdictions
which had abolished joint and several liability.  See Restatement
(Third) of Torts: Apportionment of Liability  14 cmt. b (2000).
20     We  are not ruling on how this case would be decided under
current law, as that question is not before us.
21    Griffith v. Taylor, 12 P.3d 1163, 1166 (Alaska 2000).
22    Stinson v. Holder, 996 P.2d 1238, 1244 (Alaska 2000).
23    Id.
24    Id.
25     See  Taylor  v. Johnson, 985 P.2d 460, 464  (Alaska  1999)
(defining  "assault"   to  require finding  of  intent  to  cause
harmful or offensive contact).
26         Former AS 09.17.010 (1986) provided in part:
          
          (a)   In  an  action to recover  damages  for
          personal injury based on negligence,  damages
          for  noneconomic losses shall be  limited  to
          compensation     for     pain,     suffering,
          inconvenience,      physical      impairment,
          disfigurement, loss of enjoyment of life  and
          other nonpecuniary damage.
          (b)  The amount of damages awarded by a court
          or  a jury under (a) of this section may  not
          exceed  $500,000 for each claim  based  on  a
          separate incident or injury.
27    Former AS 09.17.010(b) (1986).
28     Courts  in other jurisdictions similarly refuse  to  treat
separate  recoveries for separate incidents of sexual  misconduct
as a single claim of damages under statutory damage caps limiting
recovery  for  each "claim."  See, e.g., McGuire v. Montana,  835
P.2d  755,  762 (Mont. 1992) (holding each incident of  rape  was
separate  wrongful  act  giving rise to  separate  "claim"  under
statutory   cap   limiting  damages  for  "each  claim"   against
governmental entity).
29    Former AS 09.17.010 (1986).

30    Id.
31    54 P.3d 271, 281 (Alaska 2002).
32    Id. at 281-82.
33    See Part III.C.
34    791 P.2d 1005 (Alaska 1990).
35    951 P.2d 851 (Alaska 1998).
36    193 Cal. Rptr. 422 (Cal. App. 1983).
37    Poor, 791 P.2d at 1007 (citing AS 25.20.030).
38    Id. at 1007-08.
39    951 P.2d at 855.
40    Id.
41    Id. at 856.
42    The borough cites Alaska Rule of Evidence 613(b) and Nunn v.
State, 845 P.2d 435, 440 (Alaska App. 1993).
43     Era  Aviation, Inc. v. Lindfors, 17 P.3d  40,  47  (Alaska
2001).