FABE, Chief Justice.
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 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.
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
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.
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' × 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 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.
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"
In August 2013 the City filed two motions for summary judgment. The first motion asserted that the City was entitled to qualified immunity under AS 09.65.070(d)(2).
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 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
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 factors
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."
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 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.
"We review grants of summary judgment de novo."
"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.'"
"The existence and extent of a duty of care are questions of law which we review de novo."
"We generally review a trial court's decision to admit expert testimony for abuse of discretion."
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.
"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 and thus would be liable in the absence of such immunity.'"
Alaska Statute 09.65.070(d)(2) "immunizes a municipality from exercising or failing to exercise a discretionary function."
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 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).
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 judgment"
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, 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 AS 09.55.580(a).
"Alaska Rule of Evidence 702(a) controls the admissibility of expert testimony."
On appeal the City argues that the superior court erred in admitting Gallela's
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 testimony.
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 shaky but admissible evidence.'"
"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.'"
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"
The City argues that this gross negligence standard, and not the ordinary negligence standard announced in some of our cases
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
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 involuntarily committed for treatment.
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 reasonably foreseeable suicide attempts."
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 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 instruction "adequately inform[ed] the jury of the relevant law,"
At trial the City opposed the superior court's jury instruction number 20 regarding incapacity and allocation of fault. That instruction provided:
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 damages in `all actions involving fault of more than one person.'"
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 standard of conduct as if he were sober."
The facts in Kanayurak illustrate the high threshold for a finding of incapacity by virtue
Because this error had the effect of precluding the possibility that fault could be allocated between Louis and the City, it was prejudicial.
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.
MAASSEN, Justice, not participating.
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."