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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. C.J. v. State, Dept. of Corrections (12/15/2006) sp-6081
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
| C.J., | ) |
| ) Supreme Court No. S- 11298 | |
| Petitioner, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-99-08349 CI |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| DEPARTMENT OF | ) |
| CORRECTIONS, | ) No. 6081 - December 15, 2006 |
| ) | |
| Respondent. | ) |
| ) | |
)
STATE OF ALASKA, )
DEPARTMENT OF ) Supreme Court No. S-11300
CORRECTIONS, )
)
Petitioner, )
)
v. )
)
C.J., )
)
Respondent. )
)
Petitions for Review from the Superior Court
of the State of Alaska, Third Judicial
District, Anchorage, Sharon L. Gleason,
Judge.
Appearances: Kirsten Tinglum Friedman,
Christine S. Schleuss, and Margaret Simonian,
Friedman, Rubin & White, Anchorage, for
Petitioner/Respondent C.J. Stephanie
Galbraith Moore, Assistant Attorney General,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Respondent/Petitioner
State of Alaska.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
BRYNER, Chief Justice, concurring and
dissenting.
CARPENETI, Justice, concurring and dissenting.
MATTHEWS, Justice, dissenting in part.
I. INTRODUCTION
The rape victim of a parolee sued the State for
negligent parole supervision.
The State sought summary judgment on the grounds that (1) it owes
no duty of care in supervising parolees; (2) it is immune from
suit; and (3) it is entitled to judgment as a matter of law on
the issue of causation. We conclude that the State owes a duty
of care to a parolees victim, but vacate the denial of summary
judgment and remand to the superior court to address the
questions of discretionary function immunity and causation in
light of the principles set forth in State of Alaska, Department
of Corrections v. Cowles.1
This case also presents the question whether the cap on
noneconomic damages in AS 09.17.010 is constitutional and, if so,
whether multiple sexual penetrations should be treated as a
single injury for purposes of the cap. We hold that the cap on
noneconomic damages in AS 09.17.010 does not constitute a
violation of equal protection under the Alaska Constitution. We
also hold that each sexual assault constitutes a separate
incident under the statute.
II. FACTS AND PROCEEDINGS
A. Factual History
In 1987 Luke Carter committed a violent rape. Carter
was convicted of sexual assault in the first degree and sentenced
to a fifteen-year presumptive term. He was released on mandatory
parole on July 29, 1997.
Joseph Murphy, Carters institutional parole officer,
met with him before his release from prison to discuss his plans.
Carter initially planned to settle near his home village of
Noorvik. Carter was informed that he could not be released to
the Kotzebue area because his parole conditions required him to
live in a place where sex offender treatment was available.
Carter chose Anchorage. Carter and Murphy did not develop a
detailed release plan; Carters notification of release to
supervision did not list an address or employer for Carter in
Anchorage.
On July 29, 1997, Carter was released from prison
subject to twenty-seven standard and special conditions of
mandatory parole. Prior to his release, Carter was told that he
was required to report to his field parole officer the day after
his release and to register as a sex offender within seven days.
Field Parole Officer Linda Heyward was assigned to
Carters case and reviewed his field file a few days before his
release. On the morning of July 30, Carter reported as required
for the intake interview, but Heyward was not present. The
office clerk asked Carter to complete a monthly report form and
instructed him to return the next day for the interview. On the
form, Carter listed no residence: he provided only a Noorvik
mailing address and an unidentified Anchorage telephone number.
Carter failed to report on July 31. Carter also failed to
register as a sex offender within seven days of his release.
Heyward took no immediate action to report these violations or
pursue revocation.
On August 11 a state trooper contacted Heyward
regarding a report that Carter might have stolen a key to a hobby
locker. Heyward told the officer that she had not been in
contact with Carter for the past several weeks and gave him some
Anchorage telephone numbers at which Carter might be reached.
The officer was unable to contact Carter and placed a locate for
Carter on the state police computer system. Also on August 11
Heyward called the phone number listed on Carters form, but
Carter was not there. Heyward noted in her log that she would
give Carter two weeks to remedy his violations before taking any
further action.
Two days later, on August 13, Heyward received Carters
complete institutional file. After reviewing it, Heyward copied
medical testimony into her log regarding Carters dangerous
personality. She attempted to contact Carters cousin again, as
well as Carters father, without success. That same day, Heyward
completed a parole violation report which described Carters
failure to report and to register as a sex offender and stated
her opinion that Carter was a danger to the public and likely to
flee. This report led to the immediate issuance of an arrest
warrant. Also on August 13 Heyward notified the Kotzebue
probation office that Carter might be headed in their direction
and promised to fax them a copy of the arrest warrant. Once the
arrest warrant was issued, Heyward did not take any further
action to locate or arrest Carter.
At approximately 8:30 a.m. on August 27, 1997, Carter
attacked C.J. while she was jogging along Anchorages Tony
Knowles Coastal Trail.2 Carter grabbed her by the neck and
dragged her into the bushes. The court of appeals described the
incident in the criminal action:
He said that he had a weapon and would kill
her if she screamed. He pushed her
sweatshirt and sports bra over her head. He
penetrated her vagina with his fingers. He
then removed her shorts and underwear, and he
performed cunnilingus. He penetrated her
vagina with his penis. These three distinct
penetrations led to the three counts of first-
degree sexual assault.[3]
Carter was charged and convicted by a jury of three
counts of first-degree sexual assault. At sentencing, Carters
attorney argued that even though Carter had been convicted of
three sexual assaults he should only be subjected to a single
sentence because there was no break in the event; it was a
continuous episode. The State sought thirty years on each count
with five years suspended, imposed consecutively. The judge
rejected the defenses argument, finding it significant that this
victim was assaulted in different ways. As a result, Carter
received three partially consecutive sentences, totaling forty-
five years.4
B. Procedural History
On July 13, 1999, C.J. filed an action against the
State for negligence. On February 14, 2000, the State filed a
third-party complaint against Carter for equitable apportionment
of fault under AS 09.17.080.
On September 15, 2003, the State moved for summary
judgment. In its accompanying memorandum, the State argued that
(1) our decision in Division of Corrections v. Neakok5 should be
overruled and therefore that it owed no duty of care to C.J.; (2)
discretionary function immunity barred plaintiffs claims; and (3)
DOCs conduct did not, as a matter of law, cause C.J.s injuries.
On September 30, 2003, C.J. filed a motion asking the
court to find that (1) the caps on noneconomic damages in AS
09.17.010 are unconstitutional, and, in the alternative, that (2)
C.J. is entitled to recover damages up to the $400,000 cap for
each of the three separate incidents of rape she suffered. The
same day, the State filed a motion asking the court to limit any
potential recovery by C.J. to one award, limited to the $400,000
cap on noneconomic damages, because the repeated sexual assaults
occurred in a continuous criminal episode.
On November 17, 2003, Superior Court Judge Sharon L.
Gleason held oral argument on the motions regarding summary
judgment and the damages cap. On November 18, 2003, Judge
Gleason denied the States motion for summary judgment. Judge
Gleason also issued an order finding that C.J.s injuries shall be
treated as a single injury for purposes of AS 09.17.010 and the
non-economic damages may not exceed $400,000.
On January 27, 2004, we granted both the States
petition for review of the denial of summary judgment and C.J.s
petition for review of the superior courts ruling on the damages
cap.
III. STANDARD OF REVIEW
We review denials of summary judgment motions de novo
to determine whether there are genuine issues of material fact
and whether the moving party is entitled to judgment as a matter
of law, viewing all facts in the light most favorable to the non-
movant.6 Issues relating to a statutes constitutionality and
interpretation are also legal questions subject to de novo
review.7
IV. DISCUSSION
A. Duty, Immunity, and Causation
The State argues that it is entitled to summary
judgment because it owed no duty to protect C.J. from Carter. It
urges us to overrule our contrary holding in Neakok.8 The State
also argues that it is immune from suit under AS 09.50.250(1).
The State raised similar arguments in Cowles,9 a case that also
involves a claim of negligence against the State based on crimes
committed by a parolee under its supervision. Because these
cases present related issues, we announce our decision in these
two cases together.
As we discuss in our opinion in Cowles, we decline to
overrule our holding in Neakok that the State has a duty to
exercise due care in supervising parolees. We also set forth in
Cowles the boundaries of discretionary function immunity as it
relates to decisions involving parole supervision. Our
discussion in Cowles of when the State is immune from liability
for a parole officers failure to seek parole revocation is
particularly relevant since C.J. alleges that Heyward should have
pursued revocation when Carter failed to report on July 31 and
failed to register as a sex offender. As we explained in Cowles,
a parole officers decision whether or not to pursue revocation in
response to a known parole violation is immune from liability
unless DOC policy explicitly requires the officer to seek
revocation under these circumstances.10 On remand, the superior
court should determine whether each of DOCs allegedly negligent
decisions is a discretionary function based on the principles
outlined in Cowles and our other decisions concerning
discretionary function immunity.11
The State also argues that it is entitled to summary
judgment because no reasonable jury could find that DOCs alleged
negligence caused Carters assault. Our decision requires the
superior court to reexamine whether the State is entitled to
discretionary function immunity for some of its allegedly
negligent acts. That reexamination may affect the superior courts
causation analysis, for C.J. may only rely on non-immune acts to
establish causation. We decline to decide in the first instance
whether the State is entitled to judgment as a matter of law on
the issue of causation and remand the case to the superior court
for a ruling on this question.
B. The Cap on Noneconomic Damages in AS 09.17.010 Does Not
Violate C.J.s Right to Equal Protection Under the
Alaska Constitution.
C.J. argues that the noneconomic damages cap in AS
09.17.010 violates the equal protection clause of the Alaska
Constitution12 because two classes of successful tort plaintiffs
are treated differently: (1) those suffering serious injuries
resulting in noneconomic damages that exceed the cap, and (2)
those who receive full compensation for their loss because their
damages are below the cap.
We analyze equal protection claims under a sliding
scale approach13 which place[s] a greater or lesser burden on the
state to justify a classification depending on the importance of
the individual right involved.14 If the right impaired by the
challenged legislation is not very important, the State need only
show that its objectives are legitimate and that the legislation
bears a substantial relationship to its purpose.15 At the other
end of the continuum, legislation that impairs one of the most
important individual interests will be upheld only if it furthers
the States compelling interest and if it is the least restrictive
means available to achieve the States objective.16
We considered a facial equal protection challenge to
the noneconomic damages caps in AS 09.17.010 in Evans v. State.17
An equally divided court affirmed the superior courts holding
that the caps were constitutional.18 The plurality opinion in
Evans concluded that the interest impaired by the caps is merely
economic and therefore justifies only minimum scrutiny.19 The
plurality next determined that the stated purposes of the
legislation, which include controlling liability insurance
premiums, are legitimate.20 Finally, the plurality found that the
caps bear a substantial relationship to the legislatures
objective of lowering insurance rates.21
C.J. urges us to reject the reasoning of the plurality
opinion in Evans. She also argues that the particular
circumstances of her case enhance the caps unfairness and support
a finding that the cap is unconstitutional as applied to her. We
adopt the equal protection analysis of the plurality opinion in
Evans, and respond to each of C.J.s arguments in turn.
C.J. first makes the same argument as the Evans dissent
that the interest implicated in this case is not merely an
economic interest in money damages but the more fundamental right
of equal access to the courts.22 But we have consistently held
that restrictions on the types or amounts of damages that a
plaintiff can pursue in court impair economic interests only and
are therefore subject to minimum scrutiny review.23 As we noted
in Evans, the right of access to the courts is impaired only by
state action that actually limits or blocks access to the courts,
not by regulations that simply limit plaintiffs recovery in civil
court.24 C.J. also contends that the cap creates a practical and
effective barrier to filing suit because plaintiffs with little
or no economic loss will have insufficient incentive to file suit
and will have difficulty finding a lawyer to take the case. But
in every case where the cap is applied, the plaintiffs recovery
for noneconomic damages will be at least $400,000 plus Civil Rule
82 attorneys fees, guaranteeing sufficient incentive to exercise
the right to access the courts.25
C.J. repeats the Evans dissents argument that Alaskas
sliding-scale approach permits economic interests to qualify for
close scrutiny in some circumstances.26 But the cases cited by
C.J. and the Evans dissent for the proposition that economic
interests can qualify for heightened scrutiny involve the right
to engage in an economic endeavor, which is a special and quite
different kind of economic interest from the one at issue in this
case.27 As we explained in Wilkerson v. State, the right to
engage in an economic endeavor is important because it involves a
source of sustaining income that individuals depend on to supply
the basic necessities of life.28 In Wilkerson, we explicitly
contrasted the important interest in engaging in an economic
endeavor with the interest in other payments, such as the
permanent fund dividend or a foster parent stipend, that are not
a source of sustaining income and are therefore mere economic
interests entitled to minimum scrutiny.29 Because a noneconomic
damages award is, by definition, not a source of sustaining
income, a replacement for the ability to earn income, or a source
of money to provide for basic needs such as past or future
medical care,30 the economic interest impaired by the cap is
subject to minimal protection.
C.J. also contends that the damages cap cannot be
sustained even under minimum scrutiny analysis because the State
has failed to show the required fit between the cap on damages
and the States objective of lowering insurance premiums.31 In
making this argument, C.J. does not question whether the damages
cap will actually result in lower insurance premiums. Rather,
her argument is that it is irrational to single out the most
severely injured tort victims to pay for the reduction in
premiums. The dissent in Evans made the same argument.32
To begin, we agree that the legislature may not use a
suspect or arbitrary method in identifying the group that will
bear the brunt of an otherwise legitimate policy.33 But because
the damages cap imposes only economic burdens, and allocates
these burdens using criteria that are not presumptively suspect,
our scrutiny of the underlying rationale is minimal. Minimum
scrutiny has traditionally meant two things in assessing the
means chosen to effectuate the statutory goal. First, although
the scheme should be substantially related to some legitimate
purpose, we have not required a perfect fit between a legislative
classification and the government objective it is intended to
further.34 For example, we have upheld school funding schemes
that were not the most protective of tax equality, but that were
close enough.35 We have also upheld foster parent application
restrictions even though we conceded the restrictions do[] not
have to be meaningful in all cases,36 and have emphasized that
policies reviewed under minimum scrutiny are not unconstitutional
simply because a litigant is able to propose a regulation that
would further the legislative goal in a more rational manner.37
The second principle is that although the rationale underlying
the legislation should be logically plausible, there is no
requirement that it be proved in court. For example, in
considering a challenge to a new limit on prejudgment interest,
we upheld the limit because we agreed that a policy of reducing
malpractice insurance can reasonably be thought to be furthered
by the scheme.38 Similarly, we accepted, without evidence, the
assertion that legislation narrowing employers liability for
stress-related mental injuries would save employers money by
eliminating unusually susceptible claimants and minimizing fraud
and abuse in claims for stress-related mental injuries.39
Viewed in light of these precedents, the damages cap
satisfies the means-end fit requirement. First, the legislature
appears to have viewed large noneconomic damage awards as
susceptible to over-estimates of the dollar value of a victims
noneconomic loss.40 Whether or not we agree with this conclusion,
we think it is one that the legislature was entitled to make.
Second, the legislature could reasonably have concluded that any
alternative method of lowering insurance costs would have been
less fair than a cap on noneconomic damages. The most obvious
alternative would have been to reduce all tort awards by a fixed
percentage. But such a policy would create its own inequities.
A significant across-the-board reduction in awards might have the
effect of destroying the viability of smaller claims, thereby
burdening victims ability to seek redress to a much greater
degree than would result from a cap applicable only to high-
damage cases, which are viable almost by definition. And the
legislature could determine that an across-the-board cut would
not necessarily reduce insurance costs as effectively as a cap
because very large, uncapped awards may have a disproportionate
effect on insurance premiums. The fit between the noneconomic
damages cap and reducing insurance premiums may not be perfect,
but it satisfies minimum scrutiny.
C.J. argues that the arbitrariness and harsh effect of
the damages caps is exacerbated when applied to her because (1)
as a rape victim, her injury involves a disproportionate amount
of pain and suffering compared to monetary loss and (2) as a low-
wage earner her recovery will depend almost entirely on
noneconomic damages.41 We are sympathetic to C.Js particular
circumstances. But while limiting the noneconomic damages for
such a grievous injury may seem harsh, we have held that under a
minimum scrutiny analysis, we do not determine if a regulation is
perfectly fair to every individual to whom it is applied.42
Rather, we must decide only if the regulation bears a fair and
substantial relationship to a legitimate government objective.43
As we have explained, the damages cap satisfies this standard.
A final consideration is that the arguments advanced
by C.J. and the Evans dissent would have far-reaching
implications that are inconsistent with established law.
Legislation frequently reduces or eliminates certain tort
remedies, and often the rationale for making a subgroup of
injured people pay the price of legitimate legislative goals
could not survive close scrutiny. We have already mentioned
some precedents that illustrate this point, but some more
general examples also come to mind. Workers compensation
statutes base damages entirely on wages, essentially eliminating
all noneconomic damages.44 At oral argument, C.J. responded to
this example by noting that while a damages cap is an
unmitigated detriment to tort victims, workers compensation has
given workers a streamlined, no-fault system in return for the
lower recovery. But C.J.s characterization works only at a high
level of generality. Workers whose wages are low, who have been
the victims of blatantly negligent conduct, or who suffer
exceptional noneconomic injuries bear the brunt of a system that
may benefit their co-workers or employers but certainly does not
benefit them. Similarly, where someone is injured by the
negligence of a state official, sovereign immunity and official
immunity may bar recovery entirely.45 This immunity exists to
promote vigorous government, but it involves no other benefit to
tort victims generally, and to the victims of government torts
it must seem arbitrary that they bear the entire cost. Going
further back, historical developments such as strict products
liability have greatly expanded the tort liability of certain
actors, arguably singling them out to pay for social problems in
ways that might have seemed irrational or illegitimate at the
time.46 But tort law has not been so constitutionalized as to
prevent these developments, and society has benefitted from the
experimentation and debate that have resulted.47
Notwithstanding the foregoing, we appreciate that
there will be severely injured persons who are under-compensated
as a result of this legislation, and we are under no illusion
that this result will seem fair to them. In deciding that the
cap is constitutional, we express no opinion about whether
damages caps are good policy.48 As we noted in Evans, [i]t is
not a courts role to decide whether a particular statute or
ordinance is a wise one; the choice between competing notions of
public policy is to be made by elected representatives of the
people.49 Because the State has met its burden under minimum
scrutiny of showing that the damages caps are substantially
related to the legitimate interest of reducing insurance
premiums, we hold that the cap does not violate C.J.s right to
equal protection.
C. C.J.s Damages Should Not Be Limited to a Single Cap
Amount Under AS 09.17.010(d).
C.J. argues that the superior court erred in limiting
her potential damages to the single cap amount of $400,000. She
contends that if the damages cap is applied to her she is
entitled to recover the cap amount for each of the three types
of sexual penetrations that formed the basis of Carters three
convictions. The State argues that the superior court correctly
applied a single cap because C.J.s injuries occurred as part of
a single criminal episode.
Alaska Statute 09.17.010(b) imposes a cap on claims
arising out of a single injury or death, and AS 09.17.010(d)
provides that [m]ultiple injuries sustained by one person as a
result of a single incident shall be treated as a single injury
for purposes of this section. In interpreting a statute, we
look to the meaning of the language, the legislative history,
and the purpose of the statute in question.50 C.J. argues that
each type of penetration by Carter resulted in a separate
incident under the statute. We agree.
The State relies on the use of the word incident in
criminal cases that do not interpret AS 09.17.010 to argue that
C.J.s claims arise out of a single incident under the statute.
But a closer look at the statute and its purposes reveals each
penetration constitutes a separate incident. Alaska Statute
09.17.010(d) is intended to limit recovery for a single tortious
act that causes multiple injuries.51 Where a car accident is
caused by tortious behavior, for example, the statute seeks to
prevent the accident victim who suffers multiple injuries from
recovering more than one cap amount. But a cap on damages
resulting from a single incident does not evince a legislative
intent to absolve a tortfeasor of liability for committing
multiple, separate tortious acts that result in distinct
compensable injuries simply because those acts occur in a
compressed period of time. Such a rule would allow intentional
tortfeasors to reduce their liability by committing torts in
rapid succession undermining the compensatory function of tort
law. Eliminating liability for distinct tortious acts that
cause distinct injuries would run counter to the stated purpose
of the statute to decrease the cost of litigation without
diminishing the protection of innocent Alaskans rights to
reasonable, but not excessive, compensation for tortious
injuries caused by others.52
The Indiana Court of Appeals reached a similar
conclusion in a case involving a statute capping damages for
each occurrence of [medical] malpractice.53 The court interpreted
occurrence to mean each negligent act and its resulting injury,54
and held that where a doctor committed two separate acts of
negligence resulting in two separate injuries in the course of a
single medical procedure, the plaintiff was entitled to the
equivalent of two cap amounts.55 The court noted that to impose
a single cap on two distinct acts resulting in two distinct
injuries would undermine fundamental principles of tort law.56
Here, Carter committed three distinct acts, each an
intentional tort, each causing a separate injury. In applying
AS 09.17.010 to this case, we look to how the legislature and
the courts have defined the crime of sexual assault.57 Our
criminal law recognizes that different forms of sexual
penetration constitute different forms of indignity and
violation . . . merit[ing] separate punishment,58 and Carter was
found to have committed three separate criminal acts. Limiting
C.J. to one cap amount in this case would deny her any recovery
for her injuries as a result of two of the three types of
penetration, a result contrary to the statutes purpose of
protecting a plaintiffs right to reasonable, but not excessive,
compensation for tortious injuries.59 The State argues that the
number of incidents under AS 09.17.010 should not be tied to the
number of convictions, pointing out that the disposition of a
criminal case may depend on tactical decisions made by the
prosecutor. But our analysis relies not on the number of
Carters convictions, but on the fact that our criminal law
treats different forms of sexual penetration as separate
criminal acts.
The multiple sexual penetrations in this case are
analogous to the multiple sexual violations that occurred in
Kodiak Island Borough v. Roe.60 We held in Kodiak Island that
each occurrence of rape caused a separate injury and therefore
the plaintiff was entitled to damages for each assault.61
Although the sexual assaults in this case occurred within a more
compressed time frame, each sexual assault constitutes a
separate incident for purposes of the cap.
Moreover, it would be anomalous to conclude one
damages cap applies because the rape was a single continuous
episode when the State successfully defeated precisely that
theory in the criminal case and obtained separate sentences for
each penetration.62 At sentencing, Carters attorney argued that
even though Carter had been convicted of three sexual assaults
he should only be subjected to a single sentence because there
was no break in the event, it was a continuous episode. The
State opposed this argument, seeking thirty years on each count
imposed consecutively. The judge rejected the defenses argument
for a single sentence, finding that it was significant that this
victim was assaulted in different ways. As a result, Carter
received three partially consecutive sentences totaling forty-
five years. Given that each type of penetration was found to
constitute a separate criminal act meriting separate punishment,
it would be unjust to conclude that the victim of these separate
violations is limited to a single cap amount.
We therefore hold that if C.J. prevails in her civil
suit, she is entitled to recover up to the cap amount for each
of the three types of sexual penetration.
V. CONCLUSION
We hereby REVERSE the superior courts order that C.J.s
potential noneconomic damages be capped at $400,000 under AS
09.17.010. We VACATE the superior courts order denying the
States motion for summary judgment. We REMAND for further
proceedings consistent with this opinion.
BRYNER, Chief Justice, concurring and dissenting.
I write separately to address two points.
First, although I agree with the courts decision, I
rely on a somewhat different rationale. In todays companion
case, State, Department of Corrections v. Cowles,1 we construed
Neakok2 to impose an actionable duty on parole officers only
when the officer knew or reasonably should have known of a
focused danger to an identifiable victim or class of victims a
present danger focusing on something more than simply members of
the general public.3 As I indicated in my concurring opinion in
Cowles, I would hesitate to conclude that the population of
Anchorage qualifies as an identifiable class of victims under
this standard.4
Because I doubt that the current record in this case
establishes the focused danger needed to trigger an actionable
Neakok duty, it seems possible that C.J. might ultimately be
unable to meet the Neakok duty standard. I nonetheless believe
that the record does raise a genuine issue of material fact as
to whether Carter posed an obvious and present danger of
committing a sexual assault. And since the state did not assert
as a basis for summary judgment the absence of evidence showing
that the danger was sufficiently focused simply arguing, in
relevant part, that Neakok was bad law and should be overruled
C.J. was never called upon to develop and offer evidence that
might have established a particularized risk to an identifiable
class of victim.
Given the states failure to demonstrate that it was
entitled to summary judgment on the specific ground it asserted
below, I agree that the superior court properly declined to
grant the states motion for complete summary judgment; I further
agree that the superior courts ruling on the issue of summary
judgment must be reconsidered on remand in light of our opinions
here and in Cowles. But in addition to other questions todays
opinion identifies for consideration on remand, I would include
the question whether C.J. can meet Neakoks focused-danger
requirement. I concur in Part IV.A. of todays opinion on this
basis.
Second, as to the opinions ruling on the issue of
capping noneconomic damages, I adhere to my dissenting opinion
in Evans v. State5 and thus dissent from Part IV.B. of the
opinion.
I join the opinion in all other respects.
CARPENETI, Justice, concurring and dissenting.
I agree with the courts opinion in all respects except
Part IV.B. For the reasons expressed in Justice Bryners dissent
in Evans ex rel. Kutch v. State,1 in which I joined,2 I would
conclude that AS 09.17.010, in capping noneconomic damages,
violates the Alaska Constitutions guarantee of equal protection.
MATTHEWS, Justice, dissenting in part.
In my dissenting opinion in State of Alaska,
Department of Corrections v. Cowles, I concluded that tort
liability should not be imposed on parole officers or the State
for negligent supervision of parolees.1 The main premise of the
case holding to the contrary, Division of Corrections v. Neakok
that parole officers have a substantial ability to control the
conduct of parolees2 has been shown in subsequent years to be
false and therefore Neakok should be overruled. I would thus
reverse the superior courts denial of the States motion for
summary judgment concerning the duty issue and remand for an
entry of judgment in favor of the State.
That result would moot the additional questions
addressed in todays opinion as to whether the cap on noneconomic
damages in AS 09.17.010 is constitutional and whether the rape
victim in this case is entitled to a separate cap for each
penetration or whether the single-incident limitation for
multiple injuries should apply. But since these issues are not
mooted, I address them as well. I agree with the opinion of the
court that the damages cap is constitutional for the reasons
expressed by the court. But I do not agree that the victim in
this case is entitled to multiple caps. In my view, the rape
was a single incident resulting in multiple injuries and thus
under AS 09.17.010(d) the resulting injuries are subject to one
cap. I develop this point in the paragraphs that follow.
Alaska Statute 09.17.010 caps noneconomic losses at
the greater of $400,000 or the injured persons life expectancy
multiplied by $8,000, except in cases of severe permanent
physical impairment or severe disfigurement. The cap is
triggered by a single injury or death, but multiple injuries
sustained by one person as a result of a single incident are
counted as a single injury. Such injuries are thus subject to a
single cap rather than multiple caps.3 The question in this
case is, given that each penetration inflicted on the victim of
the rape in this case is a separate injury, whether each injury
was sustained . . . as a result of a single incident within the
meaning of AS 09.17.010(d).
The term single incident should be interpreted in a
manner that is consistent with its common usage.4 In common
usage, a rape or sexual assault occurring in a brief period of
time is referred to as an incident without regard to the details
of the assault. This usage is well illustrated by the opinion
of the court of appeals in Yearty v. State.5 The defendant
there had raped a woman at a supermarket.6 In the process he
had engaged in several types of penetrations.7 The court
referred to this assault as the Carrs Supermarket incident.8
Similarly, the same defendant had engaged in another multi-crime
sexual assault near a bike path at Goose Lake.9 The court of
appeals described this assault as the Goose Lake incident.10
The same usage is reflected in another single
incident, multiple-penetration case of the court of appeals,
Erickson v. State.11 There the court stated:
In the present case, the jury found
that Erickson had engaged in four distinct
types of sexual penetration with the victim.
To paraphrase Dunlop, [w]hen several
[distinct types of sexual penetration] occur
in the course of a single incident, the
offense prohibited by the statute has been
violated several times over.[12]
In Kodiak Island Borough v. Roe a mentally disabled
resident of a residential facility was sexually assaulted by two
employees of the facility.13 There were four separate assaults,
two by each employee, each on different days and in different
locations in the facility.14 We referred to each event as an
incident of assault.15 We employed the same usage in referring
to a Montana case where there had been three rapes of a patient
on three separate occasions, describing that case as holding
each incident of rape was a separate wrongful act.16
The usage reflected by these cases applies here. Just
as the multi-crime bike path sexual assault in Yearty was
described as an incident, and just as the multi-penetration
assault in Erickson was described as a single incident, the rape
that took place in this case is most readily described in the
same way.
This interpretation is also consistent with the
purpose of the damage cap statute. The statute is meant to
limit damage awards in order to lower, or at least control,
insurance premiums.17 This purpose is furthered by employing
the common-usage meaning reflected in the above cases because
the resulting noneconomic injuries suffered by a victim are
limited to a single cap. On the other hand, subdividing a
sexual assault into discrete penetrations runs counter to the
purpose of the statute by effectively taking the damage cap out
of play.
Apart from the general usage of the word incident and
the purpose of the statute, how else could one determine whether
a series of acts consist of a single incident or two or more
separate incidents? A sensible approach is to use the same test
used to determine whether a set of facts constitutes a single
transaction or occurrence, or more than one. This is the test
that we use when determining whether a counterclaim is
compulsory and thus must be asserted in response to a complaint,
and when determining whether a cause of action has been
impermissibly split. Incident and occurrence are synonyms,18
and our endeavor here is much like what we try to do when we use
the same transaction or occurrence test: determine what
combinations of facts should be tried together, if they are
tried at all.
The same transaction or occurrence test consists of a
list of factors that are useful in determining whether various
claims arise from the same transaction or occurrence. These
factors include whether the facts are related in time, space,
origin, or motivation; whether they form a convenient trial
unit; and whether their treatment as a unit conforms to the
parties expectations or business understanding or usage.19
These factors indicate that the rape that occurred in
this case is one transaction or occurrence rather than more than
one. Most importantly the facts here are closely related in
time, space, origin, and motivation. Further, they would form a
convenient trial unit. As to the parties expectations or usage,
I think it would be unprecedented to conduct separate trials for
each type of penetration that took place in the course of a
sexual assault. So these factors also point to the conclusion
that what we have here is a single transaction or occurrence.
Based on all these factors, it seems clear that a victim of a
multiple-penetration rape could not try a civil case based on a
complaint limited to only one penetration and then subsequently
bring a new case based on a second penetration. Doing so would
run afoul of the rule prohibiting splitting a cause of action.
It follows that each penetration is part of the same transaction
or occurrence and, by analogy, also a part of a single incident.
The fact that the criminal law may count each type of
penetration as a separate crime seems to me to be irrelevant.
Alaska Statute 09.17.010 applies to civil not criminal cases.
There is no analogous statute or legal principle in criminal law
that mandates that multiple affronts sustained by one person as
a result of a single incident must be considered a single
crime.20 The purposes of the criminal law, briefly stated, are
to condemn, punish, and deter wrongful conduct.21 These
purposes are unrelated to the purposes of AS 09.17.010 limiting
tort recoveries for noneconomic losses in order to control the
cost of liability insurance.
In summary, the brutal act that gave rise to this case
was a single incident within the common usage of that term.
This usage controls the meaning of AS 09.17.010(d) and is
consistent with its purposes, whereas a narrower usage would not
be. The test we use to define the synonymous word occurrence is
also relevant to the meaning of incident here and reveals that
the several penetrations constitute one incident. Again, it
seems beyond question that the plaintiff here would not be able
to bring a lawsuit based on one penetration and then later sue
separately on another penetration. The fact that the several
penetrations that occurred were separate crimes is irrelevant
because no principle similar to the single incident limitation
of AS 09.17.010(d) applies in criminal law, and the criminal law
rule permitting the imposition of separate convictions for each
penetration in a sexual assault has purposes that are unrelated
to the purposes of AS 09.17.010(d).
For these reasons I would uphold the determination of
the superior court that the injuries suffered by the victim in
this case are subject to a single cap.
_______________________________
1 ___ P.3d ___, Op. No. 6082 (Alaska, December 15, 2006).
2 The facts of the assault are adapted from Carter v.
State, Mem. Op. & J. No. 4233 (Alaska App., June 21, 2000), 2000
WL 799336, at *1-2.
3 Id. at *1.
4 The court of appeals upheld this sentence in Carter,
2000 WL 799336 at *3-5.
5 Div. of Corr., Dept of Health & Soc. Servs. v. Neakok,
721 P.2d 1121 (Alaska 1986).
6 State v. Sandsness, 72 P.3d 299, 301 (Alaska 2003).
7 State v. Alaska Civil Liberties Union, 978 P.2d 597,
603 (Alaska 1999) (constitutionality); Boone v. Gipson, 920 P.2d
746, 748 (Alaska 1996) (interpretation).
8 721 P.2d at 1125 (holding the State had a duty to
control a parolee or to warn potential foreseeable victims of
danger of a parolee).
9 Cowles, ___ P.3d at ___, Op. No. 6082.
10 The parties dispute whether DOC policy required Heyward
to seek revocation in response to Carters violations.
11 See Angnabooguk v. State, Dept of Natural Res., Div. of
Forestry, 26 P.3d 447, 458 (Alaska 2001) (declining to decide
whether each allegation in the complaint concerns planning or
operational decisions and instructing superior court on remand to
make a separate determination for each allegation following the
principles announced by the court). In addition to the failure
to revoke Carters parole, C.J. alleges other negligent omissions,
each of which must be addressed by the superior court on remand.
For example, C.J. alleges that DOC released Carter without an
adequate pre-release plan, but the parties do not discuss in
detail whether this function is operational or planning in
nature. The superior court must determine whether the creation
of a pre-release plan is akin to the imposition of parole
conditions and formulation of a parole plan that were found to be
immune in Cowles, or whether it is akin to the day-to-day
supervisory activities that are not entitled to discretionary
function immunity.
12 Article I, section 1 of the Alaska Constitution
provides in relevant part that all persons are equal and entitled
to equal rights, opportunities, and protection under the law.
13 Wilkerson v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 993 P.2d 1018, 1022 (Alaska 1999).
14 Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264, 269
(Alaska 1984) (citation omitted).
15 Id. at 269-70.
16 State, Acting By & Through its Depts of Trans. & Labor
v. Enserch Alaska Constr., Inc., 787 P.2d 624, 631-32 (Alaska
1990).
17 Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska
2002) (plurality opinion).
18 Id. at 1070 & n.140.
19 Id. at 1052-53.
20 Id. at 1053-54.
21 Id. at 1054-55.
22 Id. at 1072 (Bryner, J., dissenting). C.J. also argues
that the damages cap burdens her constitutional rights as a crime
victim under article I, section 12 of the Alaska Constitution
which provides in relevant part that criminal administration
shall be based upon the right of victims of crimes and
restitution from the offender. But this constitutional provision
governs criminal administration and has never been interpreted to
provide crime victims special rights in tort. The constitutional
right of crime victims to restitution from the accused in article
I, section 24 is also not implicated here because C.J. seeks
redress from the State, not her assailant.
23 See Anderson v. Central Bering Sea Fishermens Assn, 78
P.3d 710, 718 (Alaska 2003) (plurality opinion) (right to
punitive damages relates merely to economic interests); Reid v.
Williams, 964 P.2d 453, 458 (Alaska 1998) ([a] medical
malpractice plaintiffs right to damages is an economic interest,
which traditionally receives only minimal protection under our
equal protection analysis); Chokwak v. Worley, 912 P.2d 1248,
1254-55 (Alaska 1996) (analyzing challenge to statute granting
immunity from civil liability to social hosts who provide liquor
to minors under rational basis review); McConkey v. Hart, 930
P.2d 402, 407-08 (Alaska 1996) (analyzing challenge to statute
that limits accrual of prejudgment interest in cases involving
personal injury, death, and damage to property under the rational
basis test); Wilson v. Municipality of Anchorage, 669 P.2d 569,
572 (Alaska 1983) (finding that the interest in seeking tort
recovery from a governmental entity is only economic); see also
Gilmore v. Alaska Workers Comp. Bd., 882 P.2d 922, 926-27 (Alaska
1994) (finding injured employees interest in compensation
benefits that reflect actual losses is an economic interest
subject to minimal scrutiny).
24 56 P.3d at 1052 (citing cases).
25 See AS 09.17.010.
26 56 P.3d at 1072 (Bryner, J., dissenting).
27 See Enserch, 787 P.2d at 632; Commercial Fisheries
Entry Commn v. Apokedak, 606 P.2d 1255, 1266 (Alaska 1980).
28 993 P.2d at 1023.
29 Id. at 1024.
30 See AS 09.17.010(a).
31 C.J. also argues that reducing insurance premiums
cannot be a legitimate purpose under our decision in Alaska
Pacific Assurance Co., 687 P.2d at 272 (We hold that the asserted
goal of lowering insurance premiums can have no independent force
in the states attempt to meet its burden under the equal
protection clause.). We rejected an identical argument in Reid
v. Williams, explaining that the analysis in Alaska Pacific
Assurance Co., a heightened scrutiny case, does not apply to
rational basis review. Reid, 964 P.2d at 459. In Reid, we held
that reducing medical malpractice insurance costs was a
legitimate state purpose. Id.
32 See Evans, 56 P.3d at 1075 (Bryner, J., dissenting)
(quoting Fein v. Permanente Med. Group, 695 P.2d 665, 690-91
(Cal. 1985) (Bird, J., dissenting).
33 Alaska Pac. Assurance Co., 687 P.2d at 272 & n.12
(heightened scrutiny) (citations omitted).
34 Wilkerson, 993 P.2d at 1024; see also State v. Anthony,
810 P.2d 155, 161 (Alaska 1991) (equal protection does not
require perfection); Eldridge v. State, Dept of Revenue, 988 P.2d
101, 104 (Alaska 1999) (there need not be a perfect fit for the
regulation to pass the relatively low constitutional test applied
when the individuals interest is economic).
35 Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d
391, 399 (Alaska 1997).
36 Wilkerson, 993 P.2d at 1024.
37 Wilson, 669 P.2d at 573.
38 McConkey, 930 P.2d at 408.
39 Williams v. State, Dept of Revenue, 895 P.2d 99, 104
(Alaska 1995).
40 This is seen in the statement in the session law
enacting tort reform that the legislation will protect Alaskans
rights to reasonable, but not excessive, compensation for
tortious injuries caused by others. Ch. 26, 1(1), SLA 1997.
41 She also argues that the cap is particularly harsh as
applied to her because although her assailant assaulted her in
three different ways the trial court found that her injury was
subject to a single cap. We determine below that C.J. is
entitled to recover up to the cap amount for each of the three
sexual penetrations by Carter.
42 Eldridge, 988 P.2d at 104 (citation omitted).
43 Id.
44 See AS 23.30.175-215.
45 See AS 09.50.250 (retaining sovereign immunity in
certain cases); see also Alpine Indus., Inc. v. Feyk, 22 P.3d
445, 446 (Alaska 2001) (absolute official immunity protects the
authors of state public health bulletins).
46 See, e.g., Greenman v. Yuba Power Prods., 377 P.2d 897,
900 (Cal. 1963) (adopting strict liability in products liability
cases); Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436,
441 (Cal. 1944) (Traynor, J., concurring) (advocating that the
court adopt strict products liability because it is to the public
interest and because the manufacturer is best situated to pay).
47 Similarly, limited judicial review of the rationality
of economic regulation of all types has been a basic feature of
state and federal law since the demise of Lochner v. New York,
which constitutionalized laissez-faire economic principles. 198
U.S. 45 (1905) (state maximum-hours laws for bakery employees
interfered with freedom of contract and therefore violated
substantive due process). Justice Holmess dissent declared, The
14th Amendment does not enact Mr. Herbert Spencers Social
Statics, referring to a treatise advocating social darwinism.
Id. at 75.
48 Compare Valerie P. Hans & Stephanie Albertson,
Empirical Research and Civil Jury Reform, 78 Notre Dame L. Rev.
1497 (2003) (evidence of efficacy of damage caps in reducing
premiums is mixed; distortions in jury awards have been
overstated), and Adam D. Glassman, The Imposition of Federal Caps
in Medical Malpractice Liability Actions: Will They Cure the
Current Crisis in Health Care? 37 Akron L. Rev. 417 (2004), with
Patricia M. Danzon, The Effects of Tort Reform on the Frequency
and Severity of Medical Malpractice Claims, 48 Ohio St. L.J. 413,
417 (1987) (Caps on awards, collateral source offset, and
statutes of repose have had significant effects, in the direction
and magnitude that is consistent with theory, prior evidence, and
common sense.); see also W. Kip Viscusi & Patricia Born, Medical
Malpractice Insurance in the Wake of Liability Reform, 24 J.
Legal Stud. 463 (1995) (damage caps reduce insurers cost, but
cost reductions have not been passed on to insureds in the form
of premium reductions).
49 Evans, 56 P.3d at 1054 (quoting Concerned Citizens of
South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447,
452 (Alaska 1974)).
50 Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783,
787 (Alaska 1996).
51 When interpreting the former noneconomic damages cap in
Kodiak Island Borough v. Roe, we established that the cap does
not apply to each legal claim, but to each incident. 63 P.3d
1009, 1016 (Alaska 2003). Thus, a single claim of negligence
may, as here, result in recovery for more than one cap amount
when the alleged negligence results in multiple acts that cause
distinct injuries.
52 Ch. 26, 1(1), SLA 1997. We also note that because
this statute is in derogation of the common law, we must construe
it narrowly so as to effect the least possible change in the
common law. Univ. of Alaska v. Shanti, 835 P.2d 1225, 1228 n.5
(Alaska 1992).
53 Medical Assurance of Indiana v. McCarty, 808 N.E.2d
737, 743 (Ind. App. 2004).
54 Id. at 745 (analyzing the plain language of occurrence
as an act or instance of occurring, happening, event, episode, or
incident and holding that an occurrence of malpractice is the
actual act itself).
55 Id.
56 Id. at 743.
57 The dissent argues that the rules of compulsory
counterclaim can inform our understanding of the term incident.
Dissent at 31-32. But counterclaim rules serve judicial economy
and finality, and are inapposite to our interpretation of terms
within the compensatory context of tort law. Moreover,
recognition that each violation is a separate incident under the
cap in no way bears on the question of whether they could be
litigated separately.
58 Erickson v. State, 950 P.2d 580, 587 (Alaska App. 1997)
(quoting Yearty v. State, 805 P.2d 987, 995 (Alaska App. 1991)).
59 Ch. 26, 1(1), SLA 1997.
60 63 P.3d 1009 (Alaska 2003).
61 Id. at 1016.
62 Because we determine as a matter of statutory
interpretation that C.J. is entitled to up to three cap amounts
if she prevails, we need not address her contention that estoppel
bars the States arguments. Cf. Power Constructors, Inc. v.
Taylor-Hintze, 960 P.2d 20, 26 (Alaska 1998) (quotation omitted)
(stating that the doctrine of quasi-estoppel bars a party from
changing its position on an issue in later litigation where
circumstances render assertion of a second position
unconscionable).
1 State, Dept of Corr. v. Cowles, ___ P.3d ___, Op. No.
6082 (Alaska, December 15, 2006).
2 State, Div. of Corr. v. Neakok, 721 P.2d 1121 (Alaska
1986).
3 Cowles, ___ P.3d ____, Op. No. 6082 at 20 (quoting
Neakok, 721 P.2d at 1129).
4 Cowles, ___ P.3d ____, Op. No. 6082 at 30.
5 Evans ex rel. Kutch v. State, 56 P.3d 1046, 1071-75
(Alaska 2002) (Bryner, J., dissenting).
1 56 P.3d 1047, 1071-75 (Alaska 2002).
2 Id. at 1079 (Carpeneti, J., dissenting).
1 __ P.3d __, Op. No. 6082 at 31 (Alaska, December 15,
2006).
2 721 P.2d 1121, 1126 (Alaska 1986).
3 The full text of AS 09.17.010 provides:
(a) In an action to recover damages for
personal injury or wrongful death, all damage
claims for noneconomic losses shall be
limited to compensation for pain, suffering,
inconvenience, physical impairment,
disfigurement, loss of enjoyment of life,
loss of consortium, and other nonpecuniary
damage.
(b) Except as provided under (c) of this
section, the damages awarded by a court or a
jury under (a) of this section for all
claims, including a loss of consortium claim,
arising out of a single injury or death may
not exceed $400,000 or the injured persons
life expectancy in years multiplied by
$8,000, whichever is greater.
(c) In an action for personal injury,
the damages awarded by a court or jury that
are described under (b) of this section may
not exceed $1,000,000 or the persons life
expectancy in years multiplied by $25,000,
whichever is greater, when the damages are
awarded for severe permanent physical
impairment or severe disfigurement.
(d) Multiple injuries sustained by one
person as a result of a single incident shall
be treated as a single injury for purposes of
this section.
4 AS 01.10.040(a) provides in part: Words and phrases
shall be construed according to the rules of grammar and
according to their common and approved usage. When interpreting
statutory language, [u]nless otherwise defined, words will be
interpreted as taking their ordinary, contemporary, common
meaning. State v. Niedermeyer, 14 P.3d 264, 272 n.38 (Alaska
2000) (quoting Bachlet v. State, 941 P.2d 200, 205 (Alaska App.
1997)).
5 805 P.2d 987 (Alaska App. 1991).
6 Id. at 990. Note that in this case each penetration
was upheld as a separate crime. Id. at 996. Nonetheless the
assault taken as a whole was described as an incident. Id. at
990.
7 Id.
8 Id.
9 Id. at 989-90.
10 Id. at 989.
11 950 P.2d 580 (Alaska App. 1997).
12 Id. at 584 (brackets in original, emphasis omitted)
(quoting State v. Dunlop, 721 P.2d 604, 609 (Alaska 1986)).
13 63 P.3d 1009, 1011 (Alaska 2003).
14 Brief of Appellee at 14-15, Kodiak Island Borough v.
Roe, 63 P.3d 1009 (No. S-10058) (Alaska 2003).
15 63 P.3d at 1016.
16 Id. at 1016 n.28.
17 Evans v. State, 56 P.3d 1046, 1053 (Alaska 2002).
18 See Websters Third International Dictionary 1142
(1966).
19 Miller v. LHKM, 751 P.2d 1356, 1361 (Alaska 1988)
(citing Restatement (Second) of Judgments 24(2) (1981)).
20 See Erickson, 950 P.2d at 584 (concluding that four
types of penetration may result properly in four convictions even
though committed in the course of a single incident); Yearty, 805
P.2d at 995 ([E]ach count [charging a crime for each of four
types of sexual penetration for the Carrs Supermarket incident]
thus subjected Yearty to a separate conviction and sentence, even
though all counts arose from the same criminal episode.).
21 As the court of appeals in Erickson stated: In Yearty,
this court ruled that different forms of sexual penetration
constitute different forms of indignity and violation, and they
thus merit separate punishment. 950 P.2d at 587.
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