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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).
