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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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,


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.


          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.


           This appeal arises from a retrial after our remand  in

Ardinger v. Hummell.1 There we described the underlying facts  as


          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.


     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


           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.
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

                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

                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.