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Crosby v. Hummell (2/7/2003) sp-5664
Crosby v. Hummell (2/7/2003) sp-5664
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
SHERIE CROSBY, Individually, and )
as Personal Representative of the ) Supreme Court No. S-9987
Estate of Joshua Nathaniel )
Van Bavel, ) Superior Court No.
) 3KO-96-196 CI
Appellants, )
)
v. ) O P I N I O N
)
NORMANDY J. HUMMELL, ) [No. 5664 - February 7, 2003]
)
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kodiak,
Donald D. Hopwood, Judge.
Appearances: Brett Von Gemmingen, Anchorage,
for Appellants. Marc G. Wilhelm, Richmond &
Quinn, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Sherie Crosby appeals from a judgment denying her claim
for the wrongful death of her fifteen-year-old son, who was
fatally injured in an accident while driving a friend's mother's
car. Crosby alleged that her son's friend committed negligence
per se by permitting an unlicensed person to drive in violation
of AS 28.15.281(b). Crosby argues that the trial court erred by
instructing the jury to consider all the elements needed to
establish a violation of AS 28.15.281(b) when only one element
was actually disputed, by denying her motion for summary judgment
on the issue of permission to drive, and by excluding evidence of
an admission by Normandy. Because we find no reversible error,
we affirm the judgment.
II. FACTS AND PROCEEDINGS
This appeal arises from a retrial after our remand in
Ardinger v. Hummell.1 There we described the underlying facts as
follows:
On the afternoon of December 4 several
teenagers, including Joshua Van Bavel, age
fifteen, and Normandy Hummell, age fourteen,
agreed to meet later that night, after their
parents were asleep, to drive around
together. At approximately 1:30 or 2:00
a.m., Normandy took her mother's car keys
without her mother's knowledge or permission,
pushed the car down the driveway with a
friend, Christina Kilborn, and drove to
Joshua's house. The roads were icy, and
Normandy had trouble handling the car. The
girls found their friends, David Lakings and
Joshua, at Joshua's mother's house and asked
whether the boys wanted to go out as planned.
According to the testimony of Christina
and David, Normandy was scared of driving and
at first asked Joshua to drive her home so
that she and Joshua could wait for David to
pick them up in David's mother's vehicle.
But on the way to the car, Normandy insisted
that she wanted to drive. She and Joshua
argued about who should drive. The keys were
already in the ignition, and Joshua got into
the driver's seat, which he refused to
relinquish. While Joshua and Normandy
continued to argue, Joshua drove the four
teenagers to David's house where David and
Christina stayed.
Coast Guard security officers spotted
Joshua and Normandy as they continued on to
Normandy's house. The officers observed the
car lurching at a stop sign, as if the driver
were having trouble with the clutch, and they
decided to perform a welfare check to "make
sure everything [was] okay." The officers
turned on their vehicle's blue flashing
lights. As one of the officers approached
Normandy's mother's car on foot, Joshua sped
away. The officer estimated that Joshua
accelerated to a speed of seventy miles per
hour. Joshua lost control of the car and
collided with a utility pole. The collision
caused his death.[2]
After the accident, Joshua's mother, Sherie Crosby
(then Ardinger) sued Normandy Hummell, claiming that Normandy
was liable under theories of negligent entrustment and negligence
per se for permitting Joshua, an unlicensed driver, to drive her
mother's car.3 The jury returned a verdict in favor of Normandy.4
On appeal, we reversed and remanded for a new trial, finding,
among other things, that the jury should have been instructed to
hold Normandy to an adult standard of care5 and should have been
told that Normandy's conduct would be negligent per se if the
jury found that she had violated AS 28.15.281(b), a provision of
the motor vehicle code that makes it unlawful for a person in
control of a motor vehicle to knowingly permit the vehicle to be
driven by an unlicensed driver.6
At the trial on remand, Crosby pursued only her claim
of negligence per se, again contending that Normandy had violated
AS 28.15.281(b) by allowing Joshua to drive even though she knew
that he had no driver's license. The jury on retrial rejected
the claim and returned a verdict in Normandy's favor, finding
that she had not violated the statute. Crosby appeals.
III. DISCUSSION
A. Jury Instructions7
Crosby first argues that the trial court erred by
giving the jury the standard negligence per se instruction, which
placed in issue and required the jury to find all of the
necessary elements of a violation of AS 28.15.281(b). The
disputed instruction stated, in critical part:
There is a law of the State of Alaska,
Alaska Statute 28.15.281(b), which provides:
A person may not authorize or
knowingly permit a motor vehicle
owned by the person or under the
control of the person to be driven
in this state by a person who is
not validly licensed.
You must decide whether it is more
likely true than not true that the defendant,
Normandy Hummell, violated this law.
Pointing to Normandy's admission that Joshua was
unlicensed,8 to our prior decision in Ardinger v. Hummell, which
found it undisputed that Normandy assumed control of the car by
taking it from her mother,9 and to statements by Normandy's
counsel describing permission as the central point in issue,10
Crosby insists that the trial court should have given her
proposed negligence per se instruction, which would have made it
clear that permission was the only element of AS 28.15.281(b)
that was actually in dispute.11
Crosby's argument is unpersuasive. The challenged
instruction accurately stated all the statutory elements of the
offense upon which Crosby predicated her claim of negligence per
se - permitting an unlicensed person to drive, a violation of
AS 28.15.281(b). Even if some elements of that offense were
wholly undisputed, we fail to see how the instruction's
completeness would, in itself, create a risk of jury error.
Crosby fails to identify any case-specific circumstances
suggesting that her jury needed an instruction confirming a
seemingly obvious point: that an undisputed factual issue was
indeed undisputed. To the extent that undisputed evidence might
have established some aspects of Crosby's negligence per se
claim, then, we see no reason to suppose that the completeness of
the challenged instruction on negligence per se would have had
any effect on the jury other than to guide it to a proper
conclusion on the undisputed points. After all, factfinding is
the jury's quintessential role.
More important, the facts of the case are not nearly as
straightforward as Crosby would have us believe, and they fail to
support Crosby's premise that, under our holding in Ardinger v.
Hummell, the issue of Normandy's control of the car was not in
dispute. Our prior opinion did find it "undisputed that Normandy
had physical possession and control of the car when she allegedly
allowed Joshua to drive."12 And undisputed evidence also
established that Joshua ultimately gained control of the car.13
But as our opinion made clear, a storm of controversy swirled
around what occurred between these two points:
Normandy, Christina, and David all testified
that Normandy argued with Joshua about who
should drive. Collectively, they described
how Joshua took control of the driver's seat
and refused to relinquish it. Their
testimony suggests that Normandy may not have
authorized or permitted Joshua to drive.
Indeed, throughout this litigation the
parties vigorously disagreed about whether
Normandy authorized or knowingly permitted
Joshua to drive.[14]
As we recognized, then, the crux of the dispute was how Joshua
gained control of the car - whether Normandy willingly gave him
control and authorized him to drive or whether he took possession
despite her protests and she thereafter acquiesced in his driving
only because continued resistence was futile.
Thus, our prior opinion did not, as Crosby maintains,
hold that control was an undisputed issue. To the contrary, we
effectively recognized that the disputed issues of control and
permission were inseparably related. Moreover, because the case
on remand was submitted to the jury as a claim of negligence per
se, which the original jury was not allowed to consider, the
relationship between control and permission became further
complicated by the narrow statutory meaning of permission used in
AS 28.15.281(b).
In ordinary usage, the verb "permit" encompasses at
least two distinct meanings: one is relatively active and
specific, as in to give permission to someone or to authorize
something to happen; the other is broader and more passive, as in
to tolerate something or to allow it to happen.15 By requiring
that permission to drive be knowingly given by a person in
control of a motor vehicle, AS 28.15.281(b) uses the verb in its
narrow sense. In the present case, for example, the statute
unmistakably would have precluded the jury from finding a
violation of the statute if it believed, as Normandy claimed,
that Normandy did not knowingly surrender control of her car to
Joshua and that she "permitted" him to drive only in the broader
sense of the word - by ceasing her resistance and acquiescing to
Joshua's demand to drive once she recognized that she had no
ability to control his conduct.
Considering the totality of these circumstances, we are
unable to conclude that the trial court erred in giving the jury
a negligence per se instruction that listed all the elements of
AS 28.15.281(b). Indeed, an instruction like Crosby's suggested
alternative, which proposed to tell the jury to consider only the
issue of permission, might have caused significant confusion by
unduly constraining the jury's ability to consider all relevant
evidence bearing on the issue of negligence per se.16 We
also need not decide Crosby's remaining arguments addressing
other jury instructions. Crosby challenges Instruction No. 19,
which informed the jury that "[a] person's failure to have an
operator's license does not necessarily mean that the person is
incompetent or unfit as a driver." Although the meaning and
purpose of this instruction seem somewhat unclear, we agree with
Normandy's contention that the instruction's only apparent
relevance was to the issue of proximate cause, or, as Jury
Instruction No. 17 put the issue, whether the violation of AS
28.15.281(b) that Normandy allegedly committed was "a legal
cause" of Joshua's death. Yet the instructions directed the jury
to decide this issue only if the jury found that Normandy had
violated the statute. Since the special verdict form establishes
that the jury found no statutory violation and returned its
verdict without addressing the issue of legal cause, we find no
reasonable likelihood that Instruction No. 19's disputed comment
on incompetent and unfit driving had any substantial effect on
the verdict. Crosby additionally challenges language in
Instruction No. 17 describing circumstances in which a violation
of AS 28.15.281(b) would be excused. Again, however, the jury's
finding that Normandy did not violate the statute precluded it
from reaching this issue.
B. Summary Judgment17
Crosby next contends that the superior court erred in
failing to enter summary judgment on her claim of negligence per
se. Before the retrial on remand, Crosby moved for summary
judgment on her claim that Normandy violated AS 28.15.281(b).
Her summary judgment motion asserted that our decision in
Ardinger v. Hummell resolved all but one element necessary to
prove a violation of the statute - whether Normandy had given
Joshua permission to drive. The motion then alleged that
Normandy's answer to Crosby's complaint had conclusively admitted
that Normandy gave Joshua permission to drive. Crosby's
complaint alleged that, on the day of the accident, Normandy had
permitted Joshua to drive her mother's car; in answering this
allegation, Normandy admitted giving Joshua permission but
alleged that Joshua had "specifically requested to drive." This
answer, Crosby's summary judgment motion reasoned, constituted a
binding judicial admission that conclusively proved permission.
The superior court rejected this argument. Noting that
Crosby had failed to claim a judicial admission on this point
before the first trial and instead had elected to litigate the
issue of permission, the court applied Alaska Civil Rule 15(b),
which authorizes courts to treat issues not raised or disputed in
the pleadings as being disputed when they "are tried by express
or implied consent of the parties."18 Crosby challenges this
ruling. Without addressing the propriety of the trial court's
reliance on Rule 15(b), Crosby's opening brief simply asserts
that Normandy's answer qualifies as a conclusive admission.
Crosby's reply brief expands on the issue by accusing the trial
court of applying a double standard. Crosby reasons that, since
the trial court allowed Normandy to dispute the issue of control
on retrial - an issue that, according to Crosby, our first
opinion definitively found to be undisputed - fairness dictates
that the court should likewise have allowed Crosby to claim that
the previously disputed issue of permission was now undisputed.
But Crosby's argument fails for several reasons.
To qualify as a judicial admission, a party's answer
must be a clear, deliberate, and unequivocal statement of fact.19
Yet as our discussion of the jury instruction on negligence per
se illustrates, Normandy's answer acknowledging that she had
"permitted" Joshua to drive is susceptible of more than one
meaning, and only the narrower meaning would establish a
violation of AS 28.15.281(b). In context, then, Normandy's
answer is not an unequivocal statement of fact and therefore does
not qualify as a judicial admission.
Moreover, the superior court's reliance on Rule 15(b)
was appropriate. By allowing the parties to litigate the issue
of permission as a disputed point at the first trial, the
superior court effectively disregarded any inconsistent
admissions on the point set out in the parties' pleadings. On
appeal following the first trial, this court expressly held that
"a legitimate factual dispute existed" as to whether "Normandy
authorized or knowingly permitted Joshua to drive."20 On remand,
then, this holding established the law of the case, which the
trial court properly followed.21
Finally, we find no merit in Crosby's claim of unequal
treatment. Although Crosby complains of being unfairly subjected
to a double standard, her argument mistakenly assumes that the
trial court disregarded a conclusive holding in our first opinion
that the issue of control was undisputed. As we decided earlier
in this opinion, our prior opinion did not so hold.
C. Evidentiary Ruling
Crosby alternatively argues that Normandy's answer
admitting that she "permitted" Joshua to drive was at least
relevant evidence tending to show that Normandy had given Joshua
permission. By completely excluding this evidence, Crosby
contends, the trial court committed reversible error.
Although we find considerable merit in Crosby's
position that Normandy's answer was admissible as evidence of
permission, we need not conclusively decide the issue. Normandy
made almost identical admissions in a pretrial deposition and an
affidavit.22 At trial, the superior court allowed Crosby's
counsel to rely on these admissions and to question Normandy
about her statements. And Crosby's attorney discussed the
admissions in his closing argument to the jury. Considering the
availability of these parallel admissions, we find no reasonable
likelihood that exclusion of Normandy's answer to the complaint
had any appreciable effect on the verdict. Even if error, then,
exclusion of this evidence would have been harmless at most and
would not warrant reversal.23
IV. CONCLUSION
We AFFIRM the trial court's jury instructions, denial
of summary judgment, and evidentiary rulings.
_______________________________
1982 P.2d 727 (Alaska 1999).
2Id. at 729_30.
3Id. at 730.
4Id.
5Id. at 730-31.
6Id. at 733-34.
7We review jury instructions de novo and, if we find error, look
from a juror's perspective at whether it probably would have
affected the verdict. Id. at 730 n.1; Vincent by Staton v.
Fairbanks Mem'l Hosp., 862 P.2d 847, 851 (Alaska 1993).
8Normandy expressly acknowledged knowing that Joshua did not have
a valid driver's license.
9In concluding that Normandy should be held to an adult standard
of care because she had engaged in an adult activity, our opinion
noted:
In this case it is undisputed that
Normandy had physical possession and control
of the car when she allegedly allowed Joshua
to drive. She took the keys from her mother;
she drove the car to Joshua's house, where,
assuming entrustment, she transferred
physical control of the vehicle to Joshua.
From the moment she assumed control of the
car, any decisions she made as to the
exercise and relinquishment of that control
should be evaluated under an adult standard.
Ardinger, 982 P.2d at 731.
10At the trial on remand, Normandy's counsel stated: "This whole
trial has been over whether there was permission."
11Crosby proposed the following jury instruction on negligence per
se:
There is a law of the State of Alaska
[that] provides:
A person may not authorize or
knowingly permit a motor vehicle
owned by the person or under the
control of the person to be driven
in this state by a person who is
not validly licensed.
AS 28.15.281(b).
In this case it is undisputed that
Normandy Hummell had physical possession and
control of the car when she allegedly allowed
Joshua Van Bavel to drive. It is also
undisputed that Joshua Van Bavel was not
validly licensed. The issue for you to
decide is whether Normandy Hummell authorized
or knowingly permitted Joshua Van Bavel to
drive[] her mother's car.
If you decide that it is more likely
true than not true that [ ] Normandy Hummell
violated any part of the law, then you are
required to find Normandy Hummell negligent.
If you find that Normandy Hummell did
not violate the law, then you should pay no
further attention to this law.
12Ardinger, 982 P.2d at 731 (emphasis added).
13Id. at 729, 734.
14Id. at 734 (emphasis added).
15See Webster's New World Dictionary 1060 (2d college ed. 1980)
(defining "permit" to mean, in relevant part: "1. to allow;
consent to; tolerate . . . 2. to give permission to; authorize
. . .").
16Our decision affirming the instruction on negligence per se
makes it unnecessary to consider Crosby's related challenge to
the instruction defining "control," since Crosby's challenge to
that instruction is based on the premise that the element of
control was not in issue.
17We review summary judgment decisions de novo. Barios v. Brooks
Range Supply, Inc., 26 P.3d 1082, 1085 (Alaska 2001). We have
explained that:
Summary judgment shall be rendered "if the
pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, show that there
is no genuine issue as to any material fact
and that any party is entitled to judgment as
a matter of law." A genuine issue of fact
"exists where reasonable jurors could
disagree on the resolution of a factual
issue." The court must view all facts in the
light most favorable to the non-moving party.
The party opposing summary judgment must set
forth specific facts demonstrating that a
material issue of fact exists.
Anchorage Police Dep't Employees Ass'n v. Municipality of
Anchorage, 24 P.3d 547, 566 (Alaska 2001) (citations omitted).
18Alaska Rule of Civil Procedure 15(b) provides, in part:
Amendments to Conform to the Evidence. When
issues not raised by the pleadings are tried
by express or implied consent of the parties,
they shall be treated in all respects as if
they had been raised in the pleadings. Such
amendment of the pleadings as may be
necessary to cause them to conform to the
evidence and to raise these issues may be
made upon motion of any party at any time,
even after judgment; but failure so to amend
does not affect the result of the trial of
these issues.
19Pugliese v. Perdue, 988 P.2d 577, 580 (Alaska 1999); Hayes v.
Xerox Corp., 718 P.2d 929, 931 (Alaska 1986).
20Ardinger, 982 P.2d at 734.
21See Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763 (Alaska 1977)
("The doctrine of the law of the case prohibits the
reconsideration of issues which have been adjudicated in a
previous appeal in the same case.").
22Normandy's affidavit asserted:
We discussed who would drive my mother's car.
Joshua asked me a question from a driver's
test he had taken and said that if I could
not answer it, he should drive. When I could
not answer the question, I agreed that he
could drive to David Laking's house and then
back to my home.
23An erroneous ruling requires reversal only if our review of the
record convinces us that it probably had a substantial effect on
the jury. Vincent by Staton v. Fairbanks Mem'l Hosp., 862 P.2d
847, 853 & n.11 (Alaska 1993); accord Alaska R. Civ. P. 61 ("The
court at every stage of the proceeding must disregard any error
or defect in the proceeding which does not affect the substantial
rights of the parties.").
Crosby additionally urges us to provide guidance on
remand by making two further findings: first, that the trial
court erred in ruling that AS 09.15.010 does not allow a parent
to recover damages for loss of a child's society beyond the
child's age of majority; and second, by finding that a statement
made in one of Normandy's pretrial motions regarding causation
was an evidentiary admission. Because we affirm the judgment in
its entirety, these issues are moot.
