Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kristy Millo, Personal Representative of the Estate of Bret v. Ralph Delius

May 9, 2012

KRISTY MILLO, PERSONAL REPRESENTATIVE OF THE ESTATE OF BRET MILLO, AND ON BEHALF OF THE HEIRS OF THE DECEDENT,
v.
RALPH DELIUS, M.D.,
PLAINTIFFS, DEFENDANT.



The opinion of the court was delivered by: Sharon L. Gleason United States District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Before the court at docket 41 is defendant Ralph Delius' Motion for Partial Summary Judgment. At docket 48, plaintiff Kristy Millo opposes. At docket 51, Dr. Delius replies.

FACTS AND PROCEDURAL BACKGROUND

This case involves claims of damages resulting from the fatal shooting of Bret Millo by defendant Dr. Ralph Delius during a guided hunting trip in May 2010. Plaintiff Kristy Millo, the widow of Bret Millo, appears in this action on behalf of herself, her late husband, and their three adult daughters.

The facts, viewed in the light most favorable to the plaintiffs for purposes of this summary judgment motion, are as follows: Dr. Delius is a pediatric heart surgeon from Detroit, Michigan.*fn1 Prior to the events giving rise to this action, he had been on twenty-one guided game hunts.*fn2 In May 2010, Dr. Delius was on a guided hunting trip with Alaska Peak and Seas, a company owned by Mark Galla.*fn3 Dr. Delius had previously gone on two black bear hunting trips with Mr. Galla, but this was his first brown bear hunt.*fn4 Mr. Millo and Mr. Galla were the guides on the hunt.*fn5 There were two other clients besides Dr. Delius, as well as a cook. *fn6

The shooting occurred on May 30, 2010 on the ninth day of the ten-day trip at approximately 10:00 p.m. on the flats at the head of the Bradfield Canal in Southeast Alaska.*fn7 The sun had set at approximately 9:25 p.m.*fn8

At the time of the shooting, Mr. Galla was hunting with the other two clients.*fn9 Mr. Millo was hunting with Dr. Delius.*fn10 The two men had been traveling together until they reached a slough that Dr. Delius was uncomfortable crossing.*fn11 Mr. Millo crossed the slough and directed Dr. Delius to take an alternate route approximately forty yards down the slough.*fn12 When Dr. Delius crossed the slough, he saw an aggressive bear on top of a cut bank, with Mr. Millo ten to twelve feet below.*fn13 The Wrangell Police later determined that Dr. Delius was approximately 178 feet away from that bank at that time.*fn14 Mr. Millo chased the bear away, but it returned.*fn15 Dr. Delius then heard Mr. Millo shouting at him to shoot the bear.*fn16 Dr. Delius was not wearing his glasses, as he had removed them for the stream crossing.*fn17 He has described the visibility conditions as "low-light."*fn18 Mr. Galla has testified that, shortly before he heard the fatal gunshot, he and the other two clients had discussed stopping the hunt for the day because of the light conditions.*fn19 Mr. Galla has also testified that the light at the time of the shooting was not so poor that he would have been unable to distinguish between a person and a bear.*fn20 Mr. Millo was dressed in brown, earth-toned clothing with no blaze orange or other bright colors.*fn21 Dr. Delius looked through the scope of his Blaser rifle, saw a moving silhouette where the bear had been, shot once, and then yelled to Mr. Millo asking if he had shot the bear.*fn22 When Mr. Millo did not respond, Dr. Delius made his way to the area he had shot at.*fn23 It took Dr. Delius ten to fifteen minutes to reach Mr. Millo, whom he found at the top of the bank, where Dr. Delius had last seen the bear.*fn24

Dr. Delius immediately checked Mr. Millo's vital signs and determined that Mr. Millo was dead.*fn25 Dr. Delius fired several shots from his own rifle and Mr. Millo's rifle, and dragged Mr. Millo's body down the bank to a position he thought better defensible from bears.*fn26 The shots alerted Mr. Galla and the other two clients, who arrived at the scene approximately forty-five minutes later.*fn27 Mr. Galla used his satellite phone to contact the Wrangell Police Department, who arrived at approximately 2:00 a.m.*fn28

The autopsy report prepared by the State Medical Examiner dated June 2, 2010 describes the bullet as having created a blast path through the right ventricle, right atrium, intraventricular septum, and posterior left ventricle of the heart; through the thoracic aorta; through the left lower lobe of the lungs; and through multiple ribs.*fn29 The report describes extensive hemorrhaging surrounding the blast path.*fn30 It does not contain an opinion on how long Mr. Millo lived after the shooting. Dr. Delius' retained medical expert, Dr. Vincent di Maio, reviewed the autopsy report, among other materials, and concluded that "[d]ue to the extreme nature of the internal wounds, [Mr. Millo's] death would have been instantaneous."*fn31

Ms. Millo filed the complaint in this action in the Alaska Superior Court, Third Judicial District at Palmer on February 2, 2011 seeking compensatory, special, and punitive damages, as well as costs and attorney's fees on behalf of herself, Mr. Millo, and their three adult daughters.*fn32 Both parties submitted jury demands.*fn33 Dr. Delius timely removed this action to federal court on March 2, 2011.*fn34 Dr. Delius filed the present Motion for Partial Summary Judgment on January 18, 2012, seeking an order dismissing the punitive damages claim and the survival claim, precluding the characterization of loss of companionship and advice-related services as an economic loss, and excluding the Millos' three daughters from statutory beneficiary status. He also seeks a determination that the plaintiffs' non-economic claims are capped at $400,000.

DISCUSSION

I. Jurisdiction

This court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332, as the parties are citizens of different states and the amount in controversy exceeds $75,000. In this diversity action, Alaska law applies to the substantive legal issues, while federal procedures apply.*fn35

II. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) directs a court to "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The burden of showing the absence of a genuine dispute of material fact lies with the moving party.*fn36 If the moving party meets this burden, the non-moving party must present specific factual evidence demonstrating the existence of a genuine issue of fact.*fn37 The non-moving party may not rely on mere allegations or denials.*fn38 She must demonstrate that enough evidence supports the alleged factual dispute to require a finder of fact to make a determination at trial between the parties' differing versions of the truth.*fn39

When considering a motion for summary judgment, a court must accept as true all evidence presented by the non-moving party, and draw "all justifiable inferences" in the non-moving party's favor.*fn40 To reach the level of a genuine dispute, the evidence must be such as "would allow a reasonable fact-finder to return a verdict for the non-moving party."*fn41 The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts."*fn42 If the evidence provided by the non-moving party is "merely colorable" or "not significantly probative," summary judgment is appropriate.*fn43

A party asserting that a fact cannot be or is genuinely disputed must support its assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.*fn44

When granting or denying a motion for summary judgment, a court should state on the record its reasons for doing so.*fn45

III. Analysis

A. Punitive Damages Claim

Ms. Millo seeks an award of punitive damages under AS 09.17.020, which ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.