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Kodiak Island Borough v. Roe2/7/2003
No. 5663
I. INTRODUCTION
A civil jury found two Kodiak Island Borough employees liable for intentional torts they committed against a resident at a borough- operated facility for developmentally disabled women. The jury also found the borough negligent for failing to prevent the employees' intentional torts. The trial court declined to permit the jury to allocate fault and apportion damages between the negligent and intentional tortfeasors, interpreting the apportionment statutes then in effect to preclude such an allocation. Because the applicable apportionment statutes were silent on the issue of allocating fault in this situation, and because the common law disallowed such an apportionment, we affirm the trial court's decision precluding apportionment. Because we find no reversible error on the other issues the borough appeals, we affirm the judgment.
II. FACTS AND PROCEEDINGS
C.E. is a developmentally disabled woman who suffers from cerebral palsy. C.E. functions intellectually and socially at the level of a ten- to twelve-year-old child with an IQ in the lower- sixties. In 1990 she moved into a semi-independent apartment which was part of a Kodiak Island Borough residential treatment program. C.E.'s apartment was next door to the residential program's Crisis Respite Unit. The Crisis Respite Unit staff had keys to the semi- independent apartments and administered medication to the women who lived there.
Jacob Simeonoff and Dana McNair were borough residential program employees in 1990. Simeonoff was hired after twice residing in the residential program for mental health and substance abuse problems, and after having been convicted twenty-eight times of criminal offenses, including felony assault. He was hired in 1988 as a Crisis Respite Unit staff member, even though the director of the residential program knew at the time of Simeonoff's history. Previously employed through associated programs in the 1980's, McNair was hired in 1991 as a skills trainer in charge of securing the residential program residents' safety, health, and welfare, and periodically filled in for Crisis Respite Unit staff.
C.E. became pregnant in 1991 and gave birth to M.E. In 1995, under pressure from the Alaska Child Support Enforcement Division to establish the paternity of her child, C.E. revealed that she had had intercourse with Simeonoff and McNair. DNA testing determined that Simeonoff was M.E.'s father.
Joan Roe, C.E.'s mother, filed a lawsuit against Simeonoff, McNair, and the borough alleging among other things that the borough negligently hired, retained, promoted, and supervised Simeonoff and McNair. Trial was held in late 2000. The trial jury found that the borough was negligent in hiring, retaining, promoting, or supervising Simeonoff and McNair, and that the negligence was a substantial factor in causing harm to C.E. It found that Simeonoff and McNair intentionally touched C.E. four times and that the touching was a substantial factor in causing harm to C.E. The jury found that C.E. suffered $350,000 in economic damages and $1 million in non-economic damages. The trial court then entered judgment in the principal amount of $1,350,000 against the borough.
The borough appeals, raising various issues.
III. DISCUSSION
A. The Trial Court Properly Declined To Allow the Jury To Allocate Fault and Apportion Damages Between the Negligent and Intentional Tortfeasors.
The borough argues that it was error to prevent the jury from apportioning fault between intentional and negligent tortfeasors. The question whether fault could be allocated and damages apportioned between neg
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