RABINOWITZ, Chief Justice.
In Kavorkian v. Tommy's Elbow Room, 694 P.2d 160 (Alaska 1985) (Kavorkian I),
I. EMOTIONAL DISTRESS CLAIMS.
Tommy's Elbow Room ("Tommy's") argues on cross-appeal that in a new trial it should not have to defend against any claims for emotional distress. The superior court instructed the jury during the first trial that, if certain facts were found, plaintiffs Fred and Martha Brantingham could recover for the emotional distress the accident had caused them. We conclude that on retrial the superior court should give an instruction on negligent infliction of emotional harm, but that an instruction for intentional infliction would be improper.
When Pears' truck hit them, Marie and Sarah Kavorkian and Tonya Brantingham were returning home from a Rainbow Girls function. Fred Brantingham, Tonya's father, also had been at the function, but stayed behind to chair a committee meeting. On his way home, Brantingham drove through the intersection of Third Street and the Steese Expressway and noticed that there had been an accident. While he did not realize that the Kavorkian car was involved, he sensed that something was "very seriously wrong." When he reached his house, he found that Tonya was not yet there. He testified: "I went home and I knew — I knew what I was going to find ... I knew that Tonya wasn't going to be there. And so I went home and I found out that she in fact was not there and I talked to my wife — I told my wife that I'd go back... ." Brantingham drove back to the intersection and discovered that police and medical technicians were attempting to remove Tonya from the Kavorkians' smashed Datsun. At trial he described what he saw at the scene of the accident:
[Tr. 1285] While his daughter was taken to the hospital, Brantingham drove home to get his wife Martha and their son Eric. Tonya's heart continued to beat for several hours, and her parents were present when she died.
A. Fred Brantingham's Claim for Negligently Inflicted Emotional Distress.
Tommy's argues that Fred Brantingham cannot recover for negligently inflicted emotional distress because he was not in the "zone of danger" when the accident occurred. This is the standard established by the Restatement (Second) of Torts § 313 (1965):
While the "zone of danger" standard was once the accepted rule for emotional distress claims, a substantial and growing minority of states have rejected it within the
If these factors are strictly applied, Fred Brantingham cannot recover even under Dillon. Their application has not, however, been so strict. In Ochoa v. Superior Court, 39 Cal.3d 159, 216 Cal.Rptr. 661, 667-668, 703 P.2d 1, 6-7 (1985), the California Supreme Court concluded that the Dillon guidelines did not require emotional distress to be caused by a brief and sudden occurrence viewed contemporaneously by the plaintiff in order to be compensable.
Under this liberal interpretation of Dillon, focusing on the foreseeability of distress to the plaintiff, the California courts have allowed emotional distress claims in cases where the plaintiff did not actually observe the tortious event. In Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969), a mother came upon her child moments after he had been injured in an explosion. The court observed that the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself, and that therefore the plaintiff had met the contemporaneous observance requirement of Dillon. Id. 79 Cal. Rptr. at 725. In Nazaroff v. Superior Court, 80 Cal.App.3d 553, 145 Cal.Rptr. 657 (1978), a mother was looking for her three-year-old son. She heard a neighbor scream, "`It's Danny.' [She] immediately had the dreadful knowledge that Danny had somehow gotten into the Beckers' swimming pool and that he was hurt." Id. 145 Cal. Rptr. at 659. She arrived on the scene in time to see her missing child pulled from a neighbor's pool and efforts made to resuscitate him. He died three days later. The Nazaroff court concluded that there were triable issues of fact as to whether the alleged harm to the mother resulted from an emotional shock proximately caused by the direct emotional impact from the contemporaneous observation of the immediate consequences of the defendants' negligent act, which was the
However, at least one California court has somewhat limited the expansion of Dillon. In Madigan v. City of Santa Ana, 145 Cal.App.3d 607, 193 Cal.Rptr. 593 (1983), a parent and step-parent arrived at the accident scene fifteen minutes after the accident occurred. They observed the damaged cars and knew that their son was in the Volkswagen; they were told that all occupants of the Volkswagen had been killed. The court of appeal held that Dillon precluded a cause of action by the parent and step-parent for the negligent infliction of emotional distress, stating that
Id. 193 Cal. Rptr. at 595-96 (emphasis in original).
The Madigan approach is not faithful to the Dillon progeny and has been rejected in a more recent California appellate decision. In Nevels v. Yeager, 152 Cal.App.3d 162, 199 Cal.Rptr. 300, 305 (1984), the court noted that the Dillon majority rejected the claim that a meritorious cause of action should go unrecognized for fear of opening the "floodgates of litigation," and added that the Dillon guidelines had become "requirements" in Madigan. It held that such rigidity was antithetical to its interpretation of Dillon and to its concept of foreseeability. Id.
B. Fred and Martha Brantingham's Claims for Intentional Infliction of Emotional Distress.
In Richardson v. Fairbanks North Star Borough, 705 P.2d 454, 456 (Alaska 1985), we adopted the Restatement's elements of a claim of intentional infliction of emotional distress. Under the Restatement (Second) of Torts § 46 (1965):
We hold that in the factual context of this case the superior court abused its discretion in giving an instruction on the intentional infliction of emotional distress.
§ 46 comment d.
In cases where the plaintiff alleges that the defendant acted recklessly, it must be shown that the defendant acted in deliberate disregard of a high degree of probability that the emotional distress will follow. See id. comment i. While Tommy's may have acted negligently and illegally, we hold as a matter of law that its conduct does not rise to the level necessary to sustain a claim of intentional infliction of emotional harm. Tommy's act of serving liquor to Richard Pears did not create a high degree of probability that someone would suffer emotional distress. While it may have been reasonably foreseeable that an intoxicated Pears would drive, have a serious accident, and cause, among other damages, emotional distress, these facts cannot be reasonably regarded as highly probable.
II. DUTY TO TRAIN.
Tommy's also argues on cross-appeal that the superior court erred in instructing the jury that AS 04.21.030 is a basis for civil liability. We agree.
Kavorkian argued to the trial court that Tommy's had a duty to exercise reasonable care in training its employees to recognize "drunken persons," pursuant to AS 04.21.030, and that failure to meet this duty subjects Tommy's to liability for damages.
Alaska Statute 04.21.030 does not impose civil liability on licensees. The Alcoholic Beverage Control Board refers to this statute in determining whether to suspend or revoke a license.
AS 04.16.030, in turn, provides:
This statutory scheme thus establishes that unless a drunken person is served with "criminal negligence," the person who serves him is not civilly liable for injuries resulting from the drunken person's intoxication.
III. THE WRONGFUL DEATH DAMAGES INSTRUCTIONS.
Tommy's challenges the superior court's jury instructions regarding the damages allowed under AS 09.55.580 for Marie Kavorkian's wrongful death.
A. Instructions Nos. 23, 24, and 29.
Tommy's contends that the trial court erred in giving Instruction No. 23 because its last sentence implies that there was no limitation to the harm for which Ralph and Sarah Kavorkian could recover. The instruction read in part:
The relevant section of the wrongful death statute, AS 09.55.580(c), provides:
We hold that the superior court erred in giving the quoted instruction. AS 09.55.580(c) is not to be construed as open invitation to the jury to award damages for any or all injuries or losses resulting from the death. Here our review of all of the superior court's instructions on damages brings us to the conclusion that the challenged portion of Instruction No. 23 was unnecessary and potentially confusing. Not only is the instruction unauthorized, but the damages recoverable in a wrongful death action were adequately covered by the court's additional damage instructions.
Tommy's also contends that the trial court erred in giving Instruction No. 24 because it does not stress "loss to the survivors." We find no error in the giving of Instruction No. 24, but at retrial we think a more explicit instruction should be given. The challenged instruction states:
This instruction directs the jury to compute what Marie Kavorkian's earnings would have been and subtract a sum representing what she would have spent on herself. This is a "shorthand" method for another, more exacting method in which the fact-finder attempts to specify the contributions the deceased in fact would have made to her household. 1 S. Speiser, Recovery for Wrongful Death 2d § 3.6, at 142 (1975). This "shorthand" method is more common and involves fewer computations. Id. We find no error in using it.
However, the instruction does not explicitly direct the jury's attention to how long each of the individual beneficiaries would have received contributions. In a case in which an aging parent depends on a wage-earning child, for example, the parent's life expectancy is obviously relevant to the estimation of how much money the parent might have received from the child. See generally Speiser, supra, at § 3.22. Ideally, the instruction should ask the jury to determine how long each beneficiary would have received benefits. In this case, the omission was harmless. Plaintiffs' expert testified as if the instruction had actually called attention to each beneficiary's circumstances. He told the jury that if Marie Kavorkian had lived, Sarah Kavorkian would presumably have left home after graduating from college, and that Sarah's recovery should reflect this fact. He also emphasized that in computing the fair value of "assistance and services" Ralph Kavorkian would have received, the fact that Ralph's life expectancy was less than Marie's should be taken into account. Practically speaking, the omissions probably made little difference. Moreover, the instruction was not incorrect, but incomplete. In four separate places it refers to "each beneficiary." The verdict forms told the jury to make separate wrongful death awards for Ralph and Sarah Kavorkian. While it is likely that the jurors would estimate how long Ralph and Sarah each would have received benefits from Marie, on retrial they should be explicitly instructed to make this calculation.
Tommy's also contends that the trial court erred in giving Instruction No. 29 because Alaska's wrongful death statute does not provide for damages for the mental anguish of beneficiaries. We hold that under AS 09.55.580, spouses, children, and other dependents of the decedent may recover for their anguish, grief, and suffering resulting from the wrongful death.
In Dralle v. Steele, 13 Alaska 680, 688 (D.Alaska 1952), the court held that under Alaska's wrongful death statute, a claimant's recovery was limited to pecuniary damages, and that no allowance could be made for mental anguish. § 61-7-3, ACLA 1949. In 1955, the statute was amended to list six items specially recoverable by beneficiaries, one of which is loss of consortium. Ch. 153, § 1, SLA 1955 (now AS 09.55.580(c)). It also provided that damages should include those elements "which are the natural and proximate consequence of the negligent or wrongful act or omission" of the defendant and that the court or jury should arrive at an award that "will fairly compensate for the injury resulting from the death." Ch. 153, § 1, SLA 1955 (now AS 09.55.580(b) and (c)). In 1960, the statute was further amended to add that the amount the claimants could recover should be the "damages as the court or jury may deem fair and just." Ch. 163, § 1, SLA 1960 (now AS 09.55.580(a)).
Other jurisdictions are split on this issue. California, for example, has consistently refused to allow recovery for a claimant's pain and suffering in a wrongful death
B. Punitive Damages under the Wrongful Death Statute.
The superior court ruled that punitive damages were available under Alaska's wrongful death statute, but ordered that the trial be bifurcated as to the issues of compensatory and punitive damages. Since the jury found in favor of Tommy's, it never reached the punitive damages claims.
Tommy's argues that punitive damages are not permitted by AS 09.55.580. The precise issue we face is whether the language of the statute providing that the court or jury should award the damages it "may consider fair and just" allows a claim for punitive damages. We hold that it does when there is clear evidence that the wrongdoer acted maliciously, fraudulently, or with a wanton disregard for the decedent's safety.
In Alaska, punitive damages are not favored in law. Alaska Placer Co. v. Lee, 553 P.2d 54, 61 (Alaska 1976). They are to be allowed only with caution and within narrow limits. Id. We have stated, however, that although an action for wrongful death is statutory, we have found no legislative intent to treat it differently than common law tort actions. Haakanson v. Wakefield Seafoods, 600 P.2d 1087, 1092 (Alaska 1979). The incongruous result of treating wrongful death actions differently than common law tort actions with respect to awarding punitive damages has been the basis of several courts' decisions on this issue. It is unlikely that a legislature would intend that a person injured by a negligent defendant may recover punitive damages, but that the estate of one killed by such a person may not, when the purpose of awarding punitive damages is deterrence. See Speiser, supra, § 3.4, at 135. "The nature and quality of the wrongful act should dictate whether its perpetrator should be compelled to respond in more than compensatory damages — not the fortuitous circumstances whether he happens to injure or kill his victim." Id.
This was the basis of the Idaho Supreme Court's decision in Gavica v. Hanson, 101 Idaho 58, 608 P.2d 861 (1980). That state's wrongful death statute provides that "such damages may be given as under all the circumstances of the case may be just." Idaho Code § 5-311 (1979 & Supp. 1985). The court construed this language to permit punitive damages because to hold otherwise would violate the precept that the
The West Virginia wrongful death statute provides that the jury "may award such damages as to it may seem fair and just." W. Va. Code, § 55-7-6 (1981 & Supp. 1985). In Bond v. City of Huntington, 276 S.E.2d 539, 545 (W. Va. 1981), the court held that this language included punitive damages. The court found the deterrence principle of punitive damages to be "perfectly compatible" with a wrongful death claim, and perhaps even more appropriate in wrongful death actions than in actions for less severe injuries. Id. "The fact that the wrongful death statute never spelled out particular items of damages has not precluded this court in the past from concluding that certain elements of damages could be obtained." Id. See also Behrens v. Raleigh Hills Hosp., 675 P.2d 1179, 1185 (Utah 1983).
We agree with this reasoning. This does not mean that punitive damages are available in every wrongful death case, of course. As at common law, punitive damages will be awarded where a wrongdoer's conduct can be characterized as outrageous, such as acts done with malice or bad motive, or reckless indifference to interests of another and conscious action in deliberate disregard of them. Sturm, Ruger & Co. v. Day, 594 P.2d 38, 46 (Alaska 1979), modified, 615 P.2d 621 (Alaska 1980), cert. denied, 454 U.S. 894, 102 S.Ct. 391, 70 L.Ed.2d 209 (1981), overruled on other grounds in Dura Corp. v. Harned, 703 P.2d 396, 405 n. 5 (Alaska 1985); Bridges v. Alaska Housing Authority, 375 P.2d 696, 702 (Alaska 1962).
IV. TOMMY'S PAST CONDUCT.
Tommy's argues that the superior court erred in allowing witnesses to testify that on other occasions Tommy's had served liquor to drunken persons, and that at least the trial court should have conducted a preliminary hearing out of the jury's presence before the witnesses testified. Tommy's objects to:
In each instance Judge Hanson allowed the testimony and permitted extensive cross-examination concerning it. Tommy's defense in part was that its policies forbade serving drunks and that, compared to other saloons on Second Avenue, it was a "good bar." The testimony was offered to combat this defense, establish a pattern of criminal negligence, and show that Tommy's' routine practice was to serve drunks. We agree with Kavorkian that under the circumstances this testimony was admissible. Evidence Rule 406 provides:
The superior court's specific decisions concerning the disputed items of evidence are defensible under Rule 406. Officer Wayson's assertions concerning twelve-year-old events arguably were irrelevant, but they followed Gloria Paskvan's claim that for thirty-five years Tommy's had refused to serve drunks and were admissible to refute that claim.
V. TESTIMONY REGARDING MICHAEL LESSMEIER.
Kavorkian employed Michael Lessmeier, an attorney, to prepare and notarize affidavits with which adverse witnesses could be confronted. Kavorkian called two witnesses, Joseph Wotopka and Kristina Hall, whose testimony was less favorable than Kavorkian would have liked on the issue of Richard Pears' apparent drunkenness. Kavorkian's counsel confronted them with their affidavits and asked for an explanation. On cross-examination the witnesses suggested that Lessmeier might have pressed them into making statements they now wished to qualify. Tommy's then called Andrew Lundquist, who testified that Pears did not appear to be drunk when he saw him at Tommy's the night of the accident. Tommy's then began a line of questioning intended to elicit from Lundquist complaints about Lessmeier's activities. The superior court refused to allow this testimony.
On appeal, Tommy's presents two theories under which Lundquist's evidence should have been admitted. First, it claims that badgering potential witnesses is an "admission" that one's case is weak. The superior court flatly rejected this approach, although it is true that sufficiently improper conduct may constitute an admission. See Schaff v. Coyle, 121 Okl. 228, 249 P. 947, 955 (1925) (party's agent tries to bribe witness). Nevertheless, the facts here simply do not rise to this level. Tommy's second argument is that Lundquist's testimony would have helped to rehabilitate witnesses Wotopka and Hall by casting doubt on their affidavits. In our view, the superior court correctly decided to focus the proceedings on witnesses', not attorneys', credibility and correctly applied the Evidence Rule 401/403 balancing test.
Therefore, the superior court's decision on the cross-appeal issues originally raised in Kavorkian I is AFFIRMED in part and REVERSED in part.
Counsel for appellees have conceded that they are not advancing a claim on behalf of Martha Brantingham for negligently inflicted emotional distress.
1 Senate Journal Supp. No. 23, at 20 (1980).
Also, the police and the Alcoholic Beverage Control Board look to AS 04.21.030 and AS 04.16.150 in determining when it is appropriate to file a criminal complaint against a licensee. AS 04.16.150 states:
The committee report for AS 04.16.150 states:
1 Senate Journal Supp. No. 23, at 18 (1980).
We also disagree with Tommy's contention that at retrial, all punitive damages claims should have to survive a preliminary hearing before being presented to the jury. The superior court granted Tommy's motion to sever the punitive from the compensatory claims. If the jury finds Tommy's liable, then the trial court will decide whether the evidence is sufficient to submit the punitive damages claims to the jury. If the superior court decides that the evidence is sufficient to support the claims, there is no "prejudicial" evidence from which to insulate the jury, and a preliminary hearing would serve no purpose.