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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. City of Hooper Bay v. Bunyan (9/11/2015) sp-7048

City of Hooper Bay v. Bunyan (9/11/2015) sp-7048

         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, email  

                                                                                   

         corrections@akcourts.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



CITY OF HOOPER BAY,                                  )  

                                                     )        Supreme Court No. S-15533  

                          Appellant,                 )  

                                                     )        Superior Court No. 4BE-12-00384 CI  

         v.                                          )  

                                                     )        O P I N I O N  

JUDY BUNYAN, individually and                        )  

as Personal Representative of                        )       No. 7048 - September 11, 2015  

Louis Bunyan, deceased, and on                       )  

behalf of Sean Bunyan and Kayla                      )  

Smith, minor children,                               )  

                                                     )  

                          Appellee.                  )  

                                                     )  



                  Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                  Fourth Judicial District, Bethel, Charles W. Ray, Jr., Judge.  



                  Appearances:  William H. Ingaldson, Ingaldson Fitzgerald,  

                                                                     

                  P.C., and Barry J. Kell, Kell & Associates, P.C., Anchorage,  

                                                        

                  for  Appellant.    David  Henderson,  Law  Offices  of  David  

                  Henderson, and Jim Valcarce, Valcarce Law Office, LLC,  

                  Bethel, for Appellee.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, and Bolger,  

                  Justices.  [Maassen, Justice, not participating.]  



                  FABE, Chief Justice.  



I.       INTRODUCTION  



                  A 21-year-old intoxicated Hooper Bay resident committed suicide while he  



was detained in a holding cell by the City of Hooper Bay.  His mother filed a wrongful  

                                                                                    


----------------------- Page 2-----------------------

death action against the City, alleging that the City's negligence led to her son's death.  



She sought damages in her individual capacity and on behalf of her son's estate and her  



son's  minor  children.    The  case  proceeded  to  a  jury  trial  and  the  jury  returned  a  



                                                                                   

$1,078,233 judgment against the City. The City appeals, raising a number of issues, and  



we  affirm  the  superior  court's  rulings  in  many  respects.    But  we  vacate  the  jury's  



                                                           

damages award and remand for further proceedings on the issue of allocation of fault  



between the City and the deceased under AS 09.17.080.  



II.       FACTS AND PROCEEDINGS  



          A.       Facts  



                                                                                               

                   On July 28, 2011, 21-year-old Hooper Bay resident Louis Bunyan hanged  



himself with the drawstring from his sweatpants while in the custody of the Hooper Bay  



Police Department (HBPD).  In the early morning hours of July 28, Louis had arrived  



                                                                                           

intoxicated at his mother Judy Bunyan's home where he lived with his siblings.  Louis  



                                

became agitated and had to be subdued by his two brothers, Keith Bunyan and Larry  



                                                            

Bunyan.  Louis's sister, Louise Bunyan, called the HBPD and reported that Louis was  



intoxicated and fighting with family members.  Village Police Officers Robert Tinker and  



                                                                                                        

Walter Naneng responded and took Louis into custody inside of Judy's home.  Officers  



Tinker and Naneng removed Louis from the home and transported him on a four-wheeler  



to the police station.  



                                                         

                   Officer Baylen Toots, the on-duty dispatcher and jailer at the police station,  



                     

later testified that Louis was highly intoxicated when he arrived at the police station.  



                                                                                                    

Officer Toots testified that Louis's sister, Louise, had called dispatch at 4:07 a.m.; Louis  



                                                                                                                          

was placed in cell number 4 at 4:31 a.m.; Louis was found "hanging with a string tied . . .  



                                                                                         

around his neck, unresponsive" at 5:10 a.m.; and responders pronounced Louis dead at  



5:30 a.m.  



                                                             -2-                                                      7048
  


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                    Officers Tinker and Toots testified that upon taking Louis into custody they  



                                                                                             

engaged in routine safety checks. Officer Tinker testified that he checked Louis's HBPD  



                                          

computer records but that he did not find any information about Louis.  In fact four  



            

HBPD  records  existed,  each  documenting  separate  incidents  in  which  Louis  had  



threatened suicide.  Photographs taken after Louis's death revealed horizontal scarring  



on his forearms, providing additional evidence of past self-harm.  



                    Officer Tinker testified that he and Officer Naneng searched Louis together.  



                                         

Officer Naneng described a "pocket check" in which they "took the stuff out of [Louis's]  



                                                                                                                

pockets[ and checked] if he had anything in his pockets to hurt himself."  Both Officers  



                   

Tinker and Naneng testified that they checked Louis's pants for a drawstring.  Officer  



                                                                                     

Naneng testified that he saw the drawstring but did not remove it because he "couldn't  



                                                                               

do a strip-down search."  Although Officers Tinker and Naneng did not remove Louis's  



drawstring, they did remove Louis's laced basketball shoes during the search.  



                                                                                                                     

                    Officer Tinker recalled that Louis was calm and quiet during his intake, but  



                                                                                               

that Louis began crying as he was led to the cell.  Once Louis was placed in the cell he  



                                                                             

began yelling and hitting the walls.  Officer Tinker denied a request from Louis for a pen  



and paper while escorting Louis to the cell.  Cell 4, where Louis was held, measured  



                                  

approximately 8' x 4' and received only ambient light from a small window in the door  



           

to the cell.  Metal fencing covered the window on the door.  Louis used this fencing to  



                                                                 

secure the ligature around his neck during his suicide.  Neither Louis's family members  



nor Officers Naneng, Tinker, or Toots testified that Louis expressed any thoughts or  



preoccupation with suicide on the night of his death.  



                    Officer Nathan Joseph, an experienced Hooper Bay village police officer  



                                                                               

and acting Hooper Bay police chief at the time of his deposition following Louis's death,  



                                                            

testified that an officer should check on a detainee every five minutes if that detainee was  



"highly intoxicated."  Officers Tinker and Naneng also testified that highly intoxicated  



                                                               -3-                                                         7048
  


----------------------- Page 4-----------------------

detainees should by checked every five minutes.  HBPD policy mandated that Officer  



Toots should have checked in on Louis every five minutes and should have recorded the  



time and Louis's condition at each check-up.  Officer Toots failed to create this type of  



                                                                                                      

record.  Officer Tinker testified that Officer Toots did not check in on Louis every five  



minutes,  and  Officer  Toots  testified  that  both  he  and  Officer  Tinker  were  browsing  



Facebook while Louis was detained.   Although the City asserted that Officer Toots  



checked in on Louis three to five times between 4:30 a.m. and 5:08 a.m., the superior  



                                                           

court noted in its denial of the City's motion for summary judgment that it was plausible  



that  only  two  checks  took  place  during  the  38  minutes  of  detention  before  Toots  



discovered Louis unresponsive in the cell at 5:08 a.m.  



         B.       Proceedings  



                  Louis is survived by his two children, Kayla and Sean, his mother Judy, and  



his siblings Larry, Keith, Louise, and Davida.  In August 2012 Judy filed a wrongful  



death action against the City in the Bethel superior court.  Her complaint alleged that  



"[d]ue to the [City]'s negligence, Louis Bunyan died."  Judy sought damages in her  



individual capacity as Louis's dependent and on behalf of Louis's minor children for  



"loss of contributions or support, pain and suffering, loss of assistance or services, and  



                                     

loss of consortium" under Alaska's wrongful death statute, AS 09.55.580.  She also  



                                                              

sought damages as the personal representative of Louis's estate for "[t]he harm to Louis  



Bunyan prior to his death" under AS 09.55.570.  



                  1.      The City's motions for summary judgment  



                                                         

                  In August 2013 the City filed two motions for summary judgment.  The first  



motion      asserted      that    the    City     was     entitled     to   qualified      immunity        under  



                                                       -4-                                                  7048
  


----------------------- Page 5-----------------------

                                    1  

AS 09.65.070(d)(2).   The City argued that qualified immunity attached to the decision   



by Officers Naneng and Tinker to place Louis under protective custody; to the pat down  

                                                                                                                                        



search of Louis upon arrival at the police office; and to the periodic checks made by     



Officer Toots while Louis was detained.  The City also argued that it was entitled to  



                                                                                               2  

immunity under the immunity provisions of AS 47.37.   Simultaneously, the City filed  



a motion for summary judgment that alleged that Judy was not a dependent of Louis at  

                                                                                                               



the time of his death and therefore was prohibited from recovering under AS 09.55.580  

                                                             



as a matter of law.  Judy opposed both motions.  



                       The  superior  court  denied  the  City's  motion  for  summary  judgment  



regarding Judy's status as a dependent of Louis because "numerous questions of fact  



preclude[d] the grant of summary judgment."  It noted that the City's factual position  



            1          AS 09.65.070(d)(2) provides that  



                                                                                                              

                        [a]n  action  for  damages  may  not  be  brought  against  a  

                                                                                                                        

                       municipality or any of its agents, officers, or employees if the  

                       claim . . . is based upon the exercise or performance or the  

                       failure to exercise or perform a discretionary function or duty  

                                                                                                     

                       by  a  municipality  or  its  agents,  officers,  or  employees,  

                       whether or not the discretion involved is abused.  



            2          AS 47.37.170(g) provides:  



                                                                                                          

                       A person may not bring an action for damages based on the  

                       decision   under   this   section   to   take   or   not   to   take   an  

                       intoxicated person or a person incapacitated by alcohol or  

                                             

                       drugs  into  protective  custody,  unless  the  action  is  for  

                       damages            caused          by      gross        negligence            or      intentional  

                       misconduct.  



                       AS  47.37.235(b)(4)  provides  that  "a  peace  officer  or  other  person  

responsible for detaining or transporting a person under AS 47.37.170-47.37.270" may  

                                                                        

not be held civilly or criminally liable "for detaining or failing to detain a person under  

AS 47.37.170-47.37.270 . . . if the [peace officer or other person has] performed [his  

duty] in good faith and without gross negligence."  



                                                                         -5-                                                                  7048
  


----------------------- Page 6-----------------------

was at odds with the affidavit of Judy Bunyan and economic loss reports submitted by   



Judy's economist, Francis Gallela.  The superior court concluded that "[s]ince reasonable  



                                                                                        

jurors could conclude from the evidence that there is a factual basis for Judy's claim for  



loss of support, the motion must be denied."  



                                                                                         

                     Addressing the City's qualified immunity motion for summary judgment,  



                                                                     

the superior court first determined that the City owed its detainees a duty of reasonable  



care to protect them from reasonably foreseeable harm, including self-inflicted harm.  



                                                                                                                

With regard to the decision to arrest Louis, the superior court found that "[t]he act of  



                                                 

taking Louis into custody was a discretionary action undertaken by HBPD officers."  The  



superior court determined that the decision to arrest Louis was objectively reasonable  



                                                                                    

under the circumstances and that "as to the decision to take Louis into custody, whether  



protective or otherwise, the City is entitled to discretionary immunity."  



                                                    

                      The superior court then rejected the City's assertion that because there was  



no requirement that the officers search Louis, the search itself was a discretionary act.  



                                                                                                     

The superior court noted that the decision to search Louis might be discretionary but that  



                                                                                                                    

once that decision to search had been made, the manner of executing the search was not  



                                 

a discretionary act.  Similarly, the court concluded that because the City conceded that  



                                                   

a protocol existed for checking on detainees, "the operational performance of that check  



                                                                                                     

is not discretionary and must be performed non-negligently."  The superior court also  



                                                                            

concluded  that  the  records  check  conducted  by  Officer  Tinker  was  not  subject  to  



discretionary action immunity because while the decision to check records may have  



been discretionary the actual manner of performance of the check was not.  



                      Turning to the City's argument that it was entitled to immunity pursuant to  



                                                                                                    

AS 47.37.170 and AS 47.37.235, the superior court concluded that Title 47 applied only  



                                                                                              

to the detention of intoxicated persons from public places.  Because Louis was removed  



                                                                                                             

from Judy's home, the superior court concluded that the statutes were inapplicable.  Thus  



                                                                   -6-                                                            7048
  


----------------------- Page 7-----------------------

the superior court granted the motion for summary judgment on the issue of qualified   



immunity for taking Louis into   custody and denied all of the City's other immunity  



arguments.  



                     2.        The City's motion in limine  



                     Prior  to  trial,  the  City  filed  a  motion  in  limine  to  exclude  testimony  it  



anticipated would be presented by Gallela, the economist Judy had hired, regarding the         



economic loss attendant to Louis's death.  The City argued that Gallela's economic loss  



                                                                                                                        

report ignored contradictory testimony from the family's depositions and that his report  

was  too  speculative  to  survive  application  of  the  Daubert  factors3  for  assessing  the  



                                                                                                           

credibility of scientific testimony.  The City also argued that Gallela's testimony was not  



sufficiently reliable to be allowed under Alaska Rule of Evidence 703.  



                     Judy opposed the City's motion, arguing that under Alaska law a Daubert  



                     

hearing was not a prerequisite for the admission of economic loss testimony and that  



                                                                                                            

Gallela was a highly qualified economic expert.  The superior court denied the City's  



                                 

motion and allowed Gallela to testify, concluding that "[t]he City's objections . . . go to  



the weight of the testimony and opinions, not their admissibility."  



                     3.        Jury trial  



                                                                

                     The case proceeded to trial in January 2014.  The City filed three motions  



                                                                                                                    

for directed verdict at the close of Judy's case-in-chief, arguing (1) that the evidence did  



                                                                                                                    

not support a finding that Louis's suicide was reasonably foreseeable and that the City  



                                                                                                     

therefore had no duty to prevent it, (2) that there was insufficient evidence to support an  



award of economic damages, and (3) that there was insufficient evidence to support a  



                                                                         

finding that Judy was a statutory beneficiary of Louis under AS 09.55.580.  The superior  



          3          See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-94 (1993);  



State v. Coon, 974 P.2d 386, 390 (Alaska 1999).  



                                                                 -7-                                                              7048  


----------------------- Page 8-----------------------

court denied each of these motions.  The City also proposed jury instructions and a  



special verdict form that the superior court rejected.  



                                                                                                                  

                     The  jury  found  that  the  City  was  negligent  and  awarded  $960,000  in  



                                                                                                  

damages owed to Judy and Louis's two minor children.  The jury did not award any  



                                                                                      

damages  for  Louis's  pre-death  pain  and  suffering.                               The  superior  court  entered  a  



$1,078,233 judgment against the City, which included attorney's fees, costs, and interest.  



The City appeals.  



III.      STANDARDS OF REVIEW  



                                                                                                    4  

                                                                                                       We review de novo  

                     "We review grants of summary judgment de novo." 



                                                                                                        

the denial of a directed verdict to "determine whether the evidence, when viewed in the  



light most favorable to the non-moving party, is such that reasonable persons could not  



                                       5  

differ in their judgment."   When reviewing the disposition of a motion for a directed  



                                                                                                                                    6  

                                                             

verdict, "we will not 'weigh conflicting evidence or judge the credibility of witnesses.' " 



                     "We interpret statutes 'according to reason, practicality, and common sense,  



taking into account the plain meaning and purpose of the law as well as the intent of the  



                 7  

                                                                                                                           

drafters.' "   "We decide questions of statutory interpretation on a sliding scale:  '[T]he  



          4          Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 516 (Alaska 2014).   



          5  

                                      

                     Cummins, Inc. v. Nelson, 115 P.3d 536, 541 (Alaska 2005) (quoting K & K  

                         

Recycling, Inc. v. Alaska Gold Co. , 80 P.3d 702, 722 (Alaska 2003)) (internal quotation  

marks omitted).  



          6  

                                                                                                    

                    Dura Corp. v. Harned , 703 P.2d 396, 408 (Alaska 1985) (quoting City of  

 Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 220 (Alaska 1978)).  



          7  

                                                                                                     

                    Marathon Oil Co. v. State, Dep't of Natural Res. , 254 P.3d 1078, 1082  

(Alaska 2011) (quoting Native Village of Elim v. State , 990 P.2d 1, 5 (Alaska 1999)).  



                                                                -8-                                                          7048
  


----------------------- Page 9-----------------------

                                                                                                 

plainer the language of the statute, the more convincing contrary legislative history must  

be.' "8  



                                                                                                          

                    "The existence and extent of a duty of care are questions of law which we  



                          9  

review de novo."   "Jury instructions involve questions of law to which we apply our  



                                     10  

independent  judgment."                    "When  reviewing  a  trial  court's  denial  of  a  proposed  



instruction, our inquiry focuses upon whether the instructions given, when read as a  



                                                                                  11  

                                                                                                       

whole, adequately inform the jury of the relevant law."                                "An error in jury instructions  



                                                                             12  

                                                                                 "In evaluating whether there has  

is grounds for reversal only if it caused prejudice."  



been prejudicial error with regard to jury instructions, we put ourselves in the position  

of the jurors and 'determine whether the error probably affected their judgment.' "13  



                                                                           

                    "We generally review a trial court's decision to admit expert testimony for  

                               14  "Where the admissibility of expert testimony turns on a question  

                                                      

abuse of discretion."  



of law, such as the 'correct scope or interpretation of a rule of evidence,' we apply our  

                                                        



          8         Id.  (alteration in original) (quoting Alaskans for Efficient Gov't, Inc. v.  



Knowles , 91 P.3d 273, 275 (Alaska 2004)).  



          9         State v. Sandsness, 72 P.3d 299, 301 (Alaska 2003) (citing Beck v. State,  



Dep't of Transp. & Pub. Facilities , 837 P.2d 105, 109 (Alaska 1992)).  



          10        Thompson v. Cooper, 290 P.3d 393, 398 (Alaska 2012) (citing L.D.G., Inc.  



v. Brown , 211 P.3d 1110, 1118 (Alaska 2009)).  



          11        Id. (quoting Kavorkian v. Tommy's Elbow Room, Inc.                               , 694 P.2d 160, 166   



(Alaska 1985)) (internal quotation marks omitted).  



          12        Id. at 398-99 (alteration omitted) (quoting State, Dep't of Corr. v. Johnson,  



2 P.3d 56, 59 (Alaska 2000)) (internal quotation marks omitted).  



          13        Id. at 399 (quoting Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska  

                                                                                                 

2002)).  



          14        Id. at 398.  



                                                               -9-                                                         7048
  


----------------------- Page 10-----------------------

'independent judgment, adopting the rule most persuasive in light of reason, precedent         

and policy.' "15  



IV.       DISCUSSION  



                    The City makes several arguments on appeal.  It argues that it cannot be  

                                                                                



held liable in tort because it was under no duty to prevent Louis's suicide.  The City  

                                                                   



argues that if it did owe a duty of care to Louis while he was held in protective custody,  

                                                                                             



then it was entitled to summary judgment on the grounds that its actions were protected  

                                                                     



by the doctrine of qualified immunity under either AS 09.65.070(d)(2) or AS 47.37.  The  

                                                                                                                              



City argues  that  the  superior court erred in denying its motions for directed verdict  



              

because the evidence presented in Judy's case-in-chief was insufficient for reasonable  



persons to conclude that Louis's death was foreseeable and insufficient for a jury to  



conclude that Judy was financially dependent on Louis.  



                                                                         

                    Alternatively, the City argues that we must remand the case for a new trial  



                                               

because   the   superior   court   did   not   properly   include   an   instruction   regarding  



                             

foreseeability and because the superior court instructed the jury that the City owed Louis  



a heightened duty of care.  The City argues instead that its liability was limited to grossly  



                                                                                                  

negligent acts and intentional misconduct.  Regarding damages, the City argues that the  



                                                                                                               

superior court erred by allowing the introduction of Gallela's economic loss testimony  



                                                                                                        

and by failing to instruct the jury to allocate fault between Louis and the City as required  



                                                                                                          

by AS 09.17.080.  In particular, it challenges jury instruction 20 on the ground that it  



                                                                                                        

prevented the jury from allocating damages between Louis and the City as required by  



AS 09.17.080.  



          15        Id. at 349-50 (quoting City of Bethel v. Peters, 97 P.3d 822, 825 (Alaska  



2004)).  



                                                               -10-                                                             7048  


----------------------- Page 11-----------------------

           A.	        The Superior Court Did Not Err In Denying The City's Motion For  

                      Summary  Judgment  On  The  Ground  That  It  Was  Entitled  To  

                                                                                                                        

                      Qualified Immunity Under AS 09.65.070(d)(2).  



                      "In  negligence  cases,  we  treat  duty  as  the  threshold  issue  because  

                                                                                       



'conceptually, the question of the applicability of a statutory immunity does not even  

                                                                                    



arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff  

                                            



                                                                                                       16  

and thus would be liable in the absence of such immunity.' "                                               Here, the City owed  



                                                                                                                                           17  

                                                                        

Louis a "duty of reasonable care to protect a prisoner from unreasonable risks of harm." 



                                                                                                               18  

This duty "encompasses reasonably foreseeable suicide attempts."                                                    Contrary to the  

                                                                                                                    



City's  argument  on  appeal,  "the  intentionality  of  a  prisoner's  suicide  should  not  

                                                                                       



                                               19  

altogether excuse that duty."                      Last year in Achman v. State we held that "[j]ailers owe  

                                                                                                                         



their prisoners a duty 'to exercise reasonable care for the protection of [the prisoners']  

                                                                                   



lives  and  health,'  which  'encompasses  a  duty  to  prevent  self-inflicted  harm  that  is  

                                                                                                                                   

                                           20   We went on to explain that a "jailer must exercise a higher  

reasonably foreseeable.' "                                                                                         



degree  of  care  when  the  jailer  knows  or  reasonably  should  have  foreseen  that  the  

                                                                                                    21  Because the City owed  

prisoner was incapacitated, suicidal, or otherwise in danger."  

                                                                                                         



           16         Estate of Logusak ex rel. Logusak v. City of Togiak                                    , 185 P.3d 103, 106  



(Alaska 2008) (alteration omitted) (quoting                            Div. of Corr., Dep't of Health & Soc. Servs.       

v. Neakok , 721 P.2d 1121, 1125 (Alaska 1986)).  



           17         Joseph v. State , 26 P.3d 459, 474 (Alaska 2001).  



           18         Id.  



           19         Id.  



           20         323 P.3d 1123, 1127 (Alaska 2014) (alteration in original) (quoting Joseph ,  



26 P.3d at 466-67).  



           21         Id. (quoting State, Dep't of  Corr. v. Johnson, 2 P.3d 56, 60 (Alaska 2000))  



(internal quotation marks omitted).  



                                                                    -11-	                                                             7048
  


----------------------- Page 12-----------------------

                                                                                                                           22  

                                         

                                                                

Louis a "duty of reasonable care to protect a prisoner from unreasonable risks of harm," 



we reach the City's argument that it was entitled to qualified immunity.  



                   Alaska Statute 09.65.070(d)(2) "immunizes a municipality from exercising  

or failing to exercise a discretionary function."23  We have held that "decisions involving  



basic planning or policy are entitled to immunity, but 'those that are merely operational  



                                                                                               24  

in the sense that they implement plans or carry out policy' are not."                               We have also held  



that "[a]lthough the dividing line between planning and operational decisions may often  



                                                                                                   

be hard to discern, . . . 'under the planning [versus] operational test, liability is the rule,  

immunity is the exception.' "25  



                                                                                                     

                   Here the initial decision to take Louis into custody was discretionary and  



                                                                                                    

subject  to  qualified  immunity.    But  once  Louis  was  in  custody,  the  City  was  not  



                                                                                                               

immunized from liability for the implementation of the operational protocols in place for  



the detention of intoxicated individuals by its village police officers.  Officer Tinker  



decided to search the police department records for records involving Louis Bunyan.  



                                                                                                                 

Qualified immunity does not protect the City from the consequences of his failure to  



                                                                                                       

adequately implement that search.  Officer Joseph testified that it was HBPD policy to  



check on highly intoxicated detainees every five minutes.  That Officer Toots failed to  



                                                        

do so was not a discretionary decision entitled to qualified immunity but rather a failure  



          22       Joseph , 26 P.3d at 474.  



          23        Cutler v. Kodiak Island Borough, 290 P.3d 415, 420 (Alaska 2012).  



          24       Id. (quoting  Guerrero ex rel. Guerrero   v. A                   laska Hous. Fin. Corp., 123  



P.3d 966, 976 (Alaska 2005)).  



          25        Guerrero,  123  P.3d  at  977  (quoting  State,  Dep't  of  Transp.  &  Pub.  



Facilities v.  Sanders,  944 P.2d 453, 457 (Alaska 1997)) (footnote and internal quotation  

marks omitted).  



                                                            -12-                                                      7048
  


----------------------- Page 13-----------------------

to carry out the policy.  We affirm the superior court's denial of the City's motion for  



summary judgment on the basis of AS 09.65.070(d)(2).  



                                                     

          B.	       The Superior Court Did Not Err In Denying The City's Motions For  

                                                

                    Directed Verdict.  



                                                                                                      

                    The  City  appeals  the  denial  of  two  of  its  motions  for  directed  verdict,  



arguing that based on the evidence presented reasonable persons could not conclude that  



                       

Louis's death  was foreseeable or that Judy was financially dependent on Louis and  



                                                                                       

therefore entitled to seek damages under AS 09.55.580(a). When reviewing motions for  



                                                                

directed verdict we "determine whether the evidence, viewed in the light most favorable  



           

to  the  non-moving  party,  is  such  that  reasonable  persons  could  not  differ  in  their  

                26  and  will  not  "weigh  conflicting  evidence  or  judge  the  credibility  of  

judgment"                                                                                                 

witnesses."27  



                                                                                                   

                    But Judy presented substantial evidence from which reasonable persons  



could conclude that Louis's suicide was reasonably foreseeable.  She introduced four  



separate  police  records  containing  information  that  Louis  had  a  history  of  suicidal  



ideation.    And  she  presented  testimony  that  these  records  were  available  on  the  



                                                             

computers  at  the  police  headquarters.                   A  post-mortem  photograph  revealed  visible  



horizontal  scarring  on  Louis's  forearms,  indicating  past  self-harm.    Louis's  brother  



testified that Louis was extremely upset about being removed from Judy's home and  



                                                                                                                   

placed into protective custody, and Kurtelina Bell, the woman detained in the cell next  



                                                                                                                   

to Louis's, testified that Louis was crying and pounding on the walls of his cell.  Finally,  



          26        L.D.G.,   Inc.  v.  Brown ,  211  P.3d  1110,  1117-18  (Alaska  2009)  (citing  



Holiday Inns of Am., Inc. v. Peck , 520 P.2d 87, 92 (Alaska 1974)).  



          27        Dura Corp. v. Harned , 703 P.2d 396, 408 (Alaska 1985) (quoting City of  

                                       

 Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 220 (Alaska 1978)) (internal  

quotation marks omitted).  



                                                            -13-	                                                      7048
  


----------------------- Page 14-----------------------

expert testimony indicated that Alaska Natives commit suicide at a rate five times the  



national average and that suicide is particularly problematic in rural coastal communities.  



Because a reasonable person could conclude from this body of evidence that Louis's  



suicide was reasonably foreseeable, we affirm the superior court's denial of the City's  



motion for a directed verdict on the question of foreseeability.  



                      Judy similarly introduced sufficient evidence for a reasonable person to  



conclude that she was Louis's dependent and a qualifying statutory beneficiary under  



                             28  

                                                                      

AS 09.55.580(a).                 In order to recover, a purported beneficiary must make a showing  



                                                                                                                 

"of actual dependency for significant contributions of support over a sufficient period of  



                                                                                                                              29  

                                                                                                                                   Louis's  

time to justify the assumption that such contributions would have continued." 



brother Larry testified that Judy depended the most on Louis while he was alive and  



testified  that  Louis  was  the  main  subsistence  provider  for  the  family,  providing  



waterfowl, seal, whale, and moose meat.  Larry also testified that Louis did the cooking  



for the family as well as household chores and repairs.  Judy testified that she has had  



                                                                                                                         

less subsistence food since Louis's death.  While the City points out that there was also  



                                                               

some  testimony  that  Judy  provided  financial  support  for  Louis,  we  do  not  "weigh  



                                                                                   

conflicting  evidence  or  judge  the  credibility  of  witnesses"  in  evaluating  denials  of  



                                                                30  

motions for directed verdict on appeal.                              Because a reasonable person could conclude  



that Judy was Louis's dependent, we affirm the superior court's denial of the City's  



motion for a directed verdict.  



           28         AS 09.55.580 is Alaska's wrongful death action statute.  Subsection (a)   



provides that "[t]he amount recovered, if any, shall be exclusively for the benefit of the         

decedent's spouse and children . . . or other dependents."  



           29  

                                                                                         

                      Greer Tank & Welding, Inc. v. Boettger, 609 P.2d 548, 551 (Alaska 1980).  



           30  

                                                                

                      Dura Corp. , 703 P.2d at 408 (quoting Whittier Fuel & Marine Corp., 577  

P.2d at 220) (internal quotation marks omitted).  



                                                                    -14-                                                               7048
  


----------------------- Page 15-----------------------

         C.	      The Superior Court Did Not Err By Admitting The Economic Loss  

                  Testimony And Report Offered By Judy's Expert Witness, Francis  

                  Gallela.  



                  "Alaska  Rule  of  Evidence  702(a)  controls  the  admissibility  of  expert  

                31   Rule  702(a)  provides:  "If  scientific,  technical,  or  other  specialized  

testimony."       



knowledge will assist the trier of fact to understand the evidence or to determine a fact  



in issue, a witness qualified as an expert by knowledge, skill, experience, training, or  



education, may testify thereto in the form of an opinion or otherwise."  "We confirmed  



                    

long ago that 'the standard for admission of expert testimony in Alaska is whether the  

                                                                      32  And "[a]s a general rule, the trial  

testimony would appreciably assist the trier of fact.' " 



judge  retains  wide  latitude  in  deciding  whether  to  admit  the  testimony  of  an  expert  

witness."33  



                  On  appeal  the  City  argues  that  the  superior  court  erred  in  admitting  



Gallela's testimony because it was too speculative and because it did not satisfy the  

                                            



requirements for the admission of scientific or technical evidence.  Under Alaska law,  

                    



"[e]xpert testimony may be based on either:  (1) technical or scientific research and  



                                                                          34	                     35 

testing; or (2) practical experience in the relevant field."                  In State v. Coon       we adopted  



the non-exclusive factors set out by the United States Supreme Court in Daubert v.  



         31       Barton v. N. Slope Borough Sch. Dist. , 268 P.3d 346, 350 (Alaska 2012)     



(citing John's Heating Serv. v. Lamb , 46 P.3d 1024, 1039 (Alaska 2002)).  



         32       Id.  (quoting  INA  Life  Ins.  Co.  v.  Brundin ,  533  P.2d  236,  243  (Alaska  



 1975)).  



         33       Id. (quoting Barrett v. Era Aviation, Inc., 996 P.2d 101, 103 (Alaska 2000))  



(internal quotation marks omitted).  



         34       Id. (citing Marsingill v. O'Malley , 128 P.3d 151, 159 (Alaska 2006)).  



         35       974 P.2d 386 (Alaska 1999).  



                                                        -15-	                                                 7048
  


----------------------- Page 16-----------------------

                                                                36  

Merrell  Dow  Pharmaceutical,  Inc.                                  to  determine  whether  scientific  testimony  is  



                                    37                                                                    38 

sufficiently reliable.                  But we held in Marron v. Stromstad                                   that testimony based on  



                                                                            

practical experience in a relevant field does not have to meet the heightened requirements  



                                                                                                                                         39 

                                                                                                                                             taking  

outlined by the United States Supreme Court in Kumho Tire Co. v. Carmichael ,  



                                                                                    

note of Alaska's "liberal standard favoring the admissibility of expert testimony . . . to  

increase the information available to the fact-finder."40  



                       Although  the  City  argues  that  economic  loss  opinions  are  generally  



technical and subject to analysis under the Daubert  factors, we have never required  



                                                                                                                              

analysis  under  Daubert  as  a  prerequisite  to  the  admission  of  expert  economic  loss  



                   41  

testimony.             Instead we have held that when "expert testimony is plainly derived from  



            36          509 U.S. 379 (1993).  



            37         See Coon, 974 P.2d at 395 ("The factors identified in                                           Daubert provide a  



useful approach: (1) whether the proffered scientific theory or technique can be (and has     

been) empirically tested (i.e., whether the scientific method is falsifiable and refutable);  

(2) whether the theory or technique has been subject to peer review and publication; (3)  

                                                                                                                      

whether the known or potential error rate of the theory or technique is acceptable, and  

whether the existence and maintenance of standards controls the technique's operation;  

                                                                                            

and  (4)  whether  the  theory  or  technique  has  attained  general  acceptance."  (citing  

Daubert , 509 U.S. at 593-94)).  



            38          123 P.3d 992 (Alaska 2005).  



            39          526 U.S. 137 (1999).  



            40         Marron , 123 P.3d at 1005.  



            41         See, e.g., State Dep't  of  Transp. & Pub. Facilities v. Miller, 145 P.3d 521,  



524-25 (Alaska 2006); Reeves v                          . Alyeska Pipeline Serv. Co., 56 P.3d 660, 669 (Alaska  

2002).  



                                                                        -16-                                                                   7048
  


----------------------- Page 17-----------------------

experience - not from the scientific method - and is not dependent on sophisticated  



                                                                42  

scientific theory, Daubert does not apply."                           



                    Gallela's testimony here was not based on complex scientific or technical  



                                                                                                                          

theories, but rather on his experience as an economist working in rural Alaska.  In his  



testimony  he  presented  a  variety  of  hypothetical  scenarios  in  which  Louis  pursued  



                                                                          

different careers.  Gallela multiplied the average wages by an average career length and  



                                                                     

discounted  the  result  to  present  value  after  accounting  for  consumption  and  taxes.  



Gallela readily noted the difficulty in estimating lifetime economic losses, admitting that  



                                                                                  

"[he didn't] have a crystal ball . . . [and] couldn't tell you exactly what [Louis] would  



have done."  



                                                                                             

                    While the City argues that a lack of specificity warrants the exclusion of  



                                             

Gallela's testimony, we have held that " '[v]igorous cross-examination, presentation of  



                                                                                      

contrary evidence, and careful instruction on the burden of proof' - in short, the basic  



                                                                                                                  

pillars of the adversary system - 'are the traditional and appropriate means of attacking  



                                                    43  

shaky but admissible evidence.' "                       The City failed to call an expert witness to rebut  



Gallela's  testimony.    It  was  up  to  the  jury  to  determine  how  much  weight  to  give  



Gallela's testimony and the jury's ultimate damage award of $960,000 - less than half  



                                                                                                       

of  Gallela's  $2,200,000  economic  loss  estimate  -  signals  that  the  jury  carefully  



                                                                                                                      

considered the City's cross-examination of Gallela's testimony.  Because a Daubert  



hearing was not required and because Gallela's testimony "appreciably assist[ed] the trier  



          42        Marron , 123 P.3d at 1007.  



          43        Id. (alteration in original) (quoting Daubert v. Merrell Dow Pharm., Inc. ,  



509 U.S. 579, 596 (1993)); see also Maines v. Kenworth Alaska, Inc. , 155 P.3d 318, 326  

                                                                                                        

(Alaska 2007) ("[W]eaknesses in data used by an expert in formulating his opinion are  

                                                                                                             

properly weighed by the jury after being brought out by cross-examination." (quoting  

                                                                                  

N. Lights Motel, Inc. v. Sweaney , 561 P.2d 1176, 1189 (Alaska 1977))).  

                                 



                                                              -17-                                                         7048
  


----------------------- Page 18-----------------------

            44 

                                                                                                    

of fact,"      we conclude that the superior court did not err in admitting Gallela's economic  



loss testimony.  



          C.	       The Superior Court's Jury Instructions  



                    1.	      The superior court did not err by giving an ordinary negligence  

                             instruction rather than requiring gross negligence to establish  

                             liability.  



                    "We interpret statutes 'according to reason, practicality, and common sense,  



taking into account the plain meaning and purpose of the law as well as the intent of the  

drafters.'  "45  

                     The  City  argues  that  Louis  was  taken  into  protective  custody  under  



                                                                                                   

AS 47.37.170(b), which provides that "[a] person who appears to be incapacitated by  



alcohol or drugs in a public place shall be taken into protective custody by a peace  



officer."  Alaska Statute 47.37.170(g) establishes that "[a] person may not bring an  



                                                                                                                

action for damages based on the decision under this section to take or not to take an  



                                                                                              

intoxicated person or a person incapacitated by alcohol or drugs into protective custody,  

unless the action is for damages caused by gross negligence or intentional misconduct."46  



              

But here the action for damages was not based on the decision to take Louis into custody.  



                                                                                           

Rather, the action was based on the City's alleged violation of its duty of care to protect  



                                                             47  

detainees from harm, including self-harm.    Thus AS 47.37.170(g) does not immunize  



the City from liability or create a gross negligence standard of care for the actions taken  



          44       Barton v. N. Slope Borough Sch. Dist. , 268 P.3d 346, 350 (Alaska 2012)          



(quoting INA   Life  Ins.   Co.   v.  Brundin ,  533  P.2d  236,  243  (Alaska  1975))  (internal  

quotation marks omitted).  



          45  

                                          

                   Marathon Oil Co. v. State, Dep't of Natural Res. , 254 P.3d 1078, 1082  

(Alaska 2011) (quoting Native Village of Elim v. State , 990 P.2d 1, 5 (Alaska 1999)).  



          46       AS 47.37.170(g) (emphasis added).  



          47  

                          

                   See Joseph v. State , 26 P.3d 459, 474 (Alaska 2001).  



                                                            -18-	                                                      7048
  


----------------------- Page 19-----------------------

by the City while Louis was detained.  



                   The City argues that even if AS 47.37.170(g) only applies to the decision  



whether  to  take  an  intoxicated  person  into  protective  custody,  another  provision,  



AS 47.37.235(b)(4), applies more broadly.  That law provides that "a peace officer or  



                       

other      person       responsible         for     detaining        or     transporting         a    person        under  



AS 47.37.170-47.37.270"  



                           

                   may not be held civilly or criminally liable for detaining or  

                   failing to detain a person under AS 47.37.170-47.37.270 or  

                   for releasing a person under AS 47.37.170-47.37.270 at or  

                   before  the  end  of  the  period  for  which  the  person  was  

                                                                                      

                   admitted or committed for protective custody or treatment if  

                   the persons  have performed their duties in good faith and  

                                                        [48] 

                   without gross negligence.                   



The City argues that this gross negligence standard, and not the ordinary negligence  

standard announced in some of our cases49 and used by the superior court in this case,50  



applies to its liability for its officers' conduct while Louis was in custody.  



          48       AS 47.37.235(b)(4).  



          49       See Joseph, 26 P.3d at 470 (referencing "a jailer's duty of reasonable care"       



rather  than  the  gross  negligence  standard);  Achman  v.  State ,  323  P.3d  1123,  1127  

(Alaska 2014) ("Jailers owe their prisoners a duty 'to exercise reasonable care for the  

protection of [the prisoners'] lives and health,' which 'encompasses a duty to prevent  

                                                                               

self-inflicted harm that is reasonably foreseeable.' " (quoting Joseph , 26 P.3d at 466,  

467)).  



          50  

                                                                                                  

                   Jury instruction 15 predicated the City's liability on the jury finding that the  

City was negligent, and instruction 16 defined negligence as "[doing] something that a  

reasonably careful person would not do in the same situation or [failing] to do something  

                                                                          

that a reasonably careful person would do in the same situation."  In contrast, the Alaska  

                                                                                                              

Civil Pattern Jury Instruction 3.14 defines gross negligence as "an extreme departure  

                                                               

from [the reasonably careful person] standard," and "more than ordinary inadvertence  

or inattention, but less than conscious indifference to consequences."  



                                                           -19-                                                      7048
  


----------------------- Page 20-----------------------

                             We do not agree with the City's interpretation of AS 47.37.235(b)(4).  The  



plain text of the statute only applies the gross negligence standard to "liab[ility] for   



detaining or failing to detain a person . . . or for releasing a person."                                                                            The statute's text  



does not purport to apply the gross negligence standard to actions taken while the person       



is detained.  In this, it mirrors the scope of the immunity provided by AS 47.37.170(g).     



And like subsection .170(g), it would not apply to the actions taken by the City while  



Louis was detained.  



                             Legislative history also precludes the City's suggested broad application  



                                                                                                     

of AS 47.37.235(b)(4).  This immunity section was added to Chapter 37 in 1996 by a law  



                                                                                                                                                   

that focused on the procedures by which a person addicted to drugs or alcohol could be  



                                                                                    51  

involuntarily committed for treatment.                                                   Specifically, the law broadened the ability of  



guardians  and  public  health  officials  to  seek  30-day  and  180-day  commitments  of  



                                                              52  

alcoholics and drug abusers.                                       It did not change the authority of peace officers to take  



an incapacitated person in a public place into protective custody except to expand that  

                                                                                                                                                             

authority to reach incapacity caused by drugs as well as by alcohol.53  And the legislative  

                                                                                                  



history does not suggest that the limited liability provision in section .235 was intended  



to immunize activities that were previously authorized but not immunized; instead, it was  

                                                                                                                                                               



included to "address[] [the] potential for an unintentional increase in liability" from  



                                                       54  

passage of the 1996 law.                                    Thus, both the plain text of the statute and its legislative  



history demonstrate that the gross negligence standard in subsection .235(b)(4), like that  



               51            See generally ch. 66, SLA 1996.  



               52            See id.  8, 11, 12.  



               53            See id.  1-5.  



              54             Minutes,  Sen.  Fin.  Comm.  Hearing  on  H.B.  493,  19th  Leg.,  2nd  Sess.  



(Apr. 29, 1996) (statement of Senator Steve Rieger).  



                                                                                         -20-                                                                                   7048
  


----------------------- Page 21-----------------------

in subsection .170(g), is relevant only to the decision whether to take an individual into     



custody.  Because Judy's claim of negligence concerned the City's actions once Louis                   



was in custody rather than the decision to take him into custody in the first place, the jury   



instruction stated the appropriate duty of care owed by the City.  



                    2.	       The  superior  court's  jury  instructions  properly  included  the  

                              reasonable foreseeability element required under  Joseph  v. State  

                              and did not require a "heightened" duty of care because Louis  

                                                                  

                              was intoxicated.  



                    Our  decision  in  Joseph  v.  State  established  that   "a  jailer's  duty  of  



reasonable  care  to  protect  a  prisoner  from  unreasonable  risks  of  harm  encompasses  



                                                               55  

                                                                    In Achman v. State  we recognized that a  

reasonably foreseeable suicide attempts." 



                                                                                 

"jailer must exercise a higher degree of care when the jailer knows or reasonably should  

have foreseen that the prisoner was incapacitated, suicidal, or otherwise in danger."56  



Jury instruction 17 provided:  



                                                                 

                    If   a    person,       when       taken      into    protective        custody,        is  

                                                                                                         

                    intoxicated, and the police and/or jailers were aware of it or  

                                                                                          

                    should have been aware of it, they owe him a higher degree  

                                                                

                    of care than they owe to an ordinary sane, sober person in  

                    control  of  his  mental  and  physical  faculties.                           In  such  

                    instances, they owe such person a duty to reasonably protect  

                    him  from  reasonably  foreseeable  harm,  including  harm  

                    caused by his own act to himself.  



The language of instruction 17 corresponds directly to the legal rules set out in Achman  

                      



and Joseph .  Although the instruction does not explicitly direct the jury that it must find  

                                                                                                                  



Louis's suicide reasonably foreseeable in order to hold the City liable, as the City argues  



was required, it nevertheless states the appropriate legal standard by limiting the City's  

                                                                                      



          55        26 P.3d 459, 474 (Alaska 2001).  



          56        323  P.3d  1123,  1127  (Alaska  2014)  (quoting  State,  Dep't  of  Corr.  v.  



Johnson , 2 P.3d 56, 60 (Alaska 2000)) (internal quotation marks omitted).  



                                                              -21-	                                                        7048
  


----------------------- Page 22-----------------------

duty     to   "reasonably        protect[ing]      [Louis]      from     reasonably       foreseeable       harm."  



Instruction  17  told  the  jury  that   if   it   found  that  the  harm  Louis  suffered  was  not  



reasonably foreseeable, the City had no duty to protect him from that harm.  Because the  



                                                                                      57 

                                                                                         no prejudice resulted  

instruction "adequately inform[ed] the jury of the relevant law," 



from not requiring a specific finding that Louis's suicide was reasonably foreseeable.  



We affirm the superior court's jury instruction.  



                                                                                                       

                  3.	      Jury   instruction   20   was   erroneous   because   it effectively  

                                                                                      

                           precluded the jury from allocating fault between Louis and the  

                           City as AS 09.17.080 requires.  



                  At trial the City opposed the superior court's jury instruction number 20  



regarding incapacity and allocation of fault.  That instruction provided:  



                                              Jury Instruction 20  



                                                                                   

                  You must decide whether it is more likely true than not true  

                  that  at  the  time  Louis  Bunyan  died,  City  of  Hooper  Bay  

                  employees knew or reasonably should have known that:  



                           1.	      Louis Bunyan was likely to harm himself; or  



                           2.	      Louis Bunyan was not capable of realizing the  

                                    consequences of his actions; or  



                                                                               

                           3.	       Louis Bunyan was not capable of caring for his  

                                    own safety.  



                                                            

                  If  the  answer  to  either  1,  2,  or  3  is  "yes,"  you  may  not  

                                                       

                  allocate any fault to Louis Bunyan and must enter "zero" on  

                  the Special Verdict form in the space for his percentage of  

                  fault.  



                  If your answer to 1, 2, and 3 [is] "no," you may allocate fault  

                                           

                  to Louis Bunyan on the Special Verdict form.  



         57       Thompson v. Cooper, 290 P.3d 393, 398 (Alaska 2012) (quoting Kavorkian  



v. Tommy's Elbow Room, Inc., 694 P.2d 160, 166 (Alaska 1985)).  



                                                        -22-                                                     7048  


----------------------- Page 23-----------------------

                     The City argued that "even if it was reasonably foreseeable that [Louis]  



would attempt suicide, fault [could] still be apportioned to [Louis]."  The City proposed  



                                                                                                                 

an alternative jury instruction that would have prohibited the jury from allocating fault  



                                                                                                          

to Louis only if he "was not capable of exercising reasonable care to prevent his suicide."  



                                            

It  also  proposed  a  special  verdict  question  asking,  "Was  Louis  Bunyan  capable  of  



                  

exercising reasonable care to prevent his suicide?"  The superior court overruled the  



City's objections and gave instruction 20 to the jury.  



                     In Joseph  we recognized that AS 09.17.080 "requires apportionment of  



                                                                                                           58  

damages in 'all actions involving fault of more than one person.' "                                            Specifically we  



recognized that in a custodial suicide action "a jury should be permitted to allocate the  

                                                                           



claimant's damages in the same way it usually does if multiple legal causes contribute  

                59   But jury instruction 20 effectively foreclosed the possibility that the jury  

to a loss."         



could both find the City liable and apportion some of the fault to Louis, thus constituting         



reversible error.  



                                                                          

                     The intent of jury instruction 20 was to prevent the jury from attributing  



fault  to  Louis  if  it  found  that  he  lacked  the  requisite  capacity  to  be  held  legally  



                                                                                                            

responsible for his actions. In  Wilson v. City of Kotzebue we noted that "[t]he general  



                                                             

rule is that voluntary intoxication does not relieve one from liability for the consequences  



                                                                                                                

of his intentional or negligent act, and one who becomes intoxicated is held to the same  



                                                               60  

                                                                    But we also held that incapacity is a defense  

standard of conduct as if he were sober."                                                             



           58        Joseph ,  26  P.3d  at  476  n.112  (quoting  AS   09.17.080(a)).    Because  



AS 09.17.080(a) explicitly requires apportionment of fault, we reject Judy's argument   

in favor of a per se rule against apportionment of fault in custodial suicide cases.  



           59        Id. at 476.  



           60        627 P.2d 623, 630-31 (Alaska 1981).  



                                                                 -23-                                                           7048
  


----------------------- Page 24-----------------------

                                                                

to comparative negligence "in the case of one who is so intoxicated, and whose mental  



                                             

and physical faculties are so impaired, that he is incapable of exercising due care for  



                                                                                

himself, where he is in the custody of another who is charged with the duty of caring for  



                 61  

                     In Kanayurak v. North Slope Borough we reversed a trial court's grant of  

                                                                                                                       

his safety." 



summary judgment, finding that a genuine issue of material fact existed with regard to  

                                                                                                                     



incapacity where an inmate had a blood alcohol level of .264%, slurred speech that was  



                                                                                                 62  

difficult to comprehend, and difficulty standing without support.                                     



                    The  facts  in  Kanayurak  illustrate  the  high  threshold  for  a  finding  of  



incapacity by virtue of intoxication in Alaska.  But instruction 20 does not apply this  



standard.  Instead, jury instruction 20 appears to be derived from an instruction quoted   

in a 1961 decision from a California intermediate appellate court,63 which has never been  

                                                                                                    



approved in Alaska.  We reject jury instruction 20's incapacity standard because it was  

                                                                        



overbroad  and  effectively  foreclosed  the  possibility  of  apportioning  any  liability  to  

                                                                                  



Louis.    The  evidence  that  supported  the  jury's  finding  that  Louis's  suicide  was  



          61        Id. at 631.  As amended in 1997, AS 09.17.080 requires apportionment of  



damages in "all actions involving fault of more than one person."  Although  Wilson,  

decided in 1981, predates this transition to a comparative negligence regime, neither  

party  disputes  that  incapacity  may  completely  preclude  allocation  of  fault  in  the  

                                                 

voluntary intoxication context.  Therefore we assume  Wilson's applicability here.  



          62        See 677 P.2d 893, 897-99 (Alaska 1984).  



          63        See DeMartini v. Alexander Sanitarium, Inc., 192 Cal. App. 2d 442, 448  



(Cal. App. 1961) ("[I]f you find from the evidence in this case that at the time of the  

                                                                                                             

accident and immediately preceding it the Plaintiff . . . was in such mental condition that  

                                                                                 

he was likely to harm himself or was not capable of realizing the consequences of his  

acts or of caring for his own safety, and that the defendant hospital, with knowledge of  

                                                                                                       

plaintiff's condition had undertaken to safeguard him and protect him against himself,  

then I instruct you that as a matter of law the Plaintiff . . . was not guilty of contributory  

                                                                                             

negligence." (emphasis added)).  



                                                              -24-                                                         7048
  


----------------------- Page 25-----------------------

reasonably   foreseeable  also   provided   a  basis  for  the  first   determinative  factor  in  



instruction 20, which foreclosed the apportionment of damages if "Louis Bunyan was   



likely to harm himself."  



                    Because this error had the effect of precluding the possibility that fault  

                                                                                               64  Although there is no  

could be allocated between Louis and the City, it was prejudicial. 



need for a new trial on the issues of negligence and damages, the case must be remanded  

                                                                                                              



for trial proceedings that will allow the jury to decide the allocation of fault under a  

                                                                     



legally  correct  instruction.    On  remand,  the  superior  court's  jury  instruction  should  



                                           

announce the proper Wilson incapacity standard and instruct the jury that it must allocate  



                      

fault between Louis and the City unless it finds that Louis was so intoxicated and his  



                                                                                                                     

mental and physical faculties so impaired that he was incapable of exercising due care  



                  65  

for himself.          The special verdict form should also reflect this standard, requiring a  



percentage  allocation  of  fault  between  Louis  and  the  City  unless  the  jury  finds  that  



Louis's "mental and physical faculties [were] so impaired, that he [was] incapable of  

                                                                                                              

exercising due care for himself.66  



V.        CONCLUSION  



                    We  AFFIRM  the  superior  court's  rulings  on  the  City's  motions  for  



summary judgment and directed verdict as well as its rulings regarding the appropriate  

                                                                                



duty of care and the admissibility of expert economic loss testimony.  But we VACATE  

                                                                                



the judgment and REMAND for further proceedings regarding Louis's capacity and the  

                                            



allocation of fault between Louis and the City of Hooper Bay.  



          64        See Thompson v. Cooper, 290 P.3d 393, 398-99 (Alaska 2012).  



          65        See Wilson, 627 P.2d at 631.  



          66        Id.  



                                                             -25-                                                        7048
  

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