Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Charles W. Ray, Jr., Judge. Superior Court No. 4BE-12-00384 CI.
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.
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.
II. FACTS AND PROCEEDINGS
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.
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 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"
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 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 immunity under the immunity provisions of AS 47.37. Simultaneously, the City filed a motion for summary judgment that alleged that Judy ...