Sowinski v. Walker

OPINION

I. INTRODUCTION

After consuming alcohol purchased at Del-Rois Liquor Store, minors Robert Walker and Justin Vaughn rode together on an ATV and were killed when they struck a cable stretched across an access road. The personal representatives of their estates and the decedents' families sued DelRois for providing alcohol to the boys and the State of Alaska for failing to maintain the access road free of hazards. The superior court granted the State summary judgment. The personal representatives of the decedents' estates and the decedents' families appeal. The claims against DelRois proceeded to final judgment after a jury trial. The jury found DelRois partly responsible and apportioned to it a share of the plaintiffs' damages. DelRois appeals. We hold the State did not have a duty either to maintain the access road or to remove the cable running across it. With respect to DelRois's appeal, because we conclude that the legislature's adoption of pure several liability in AS 09.17.080 supersedes our holding in Loeb v. Rasmussen, 1 we hold the superior court erred in requiring DelRois to bear the decedents' share of responsibility for the accident. We conclude that under Alaska's system of comparative negligence with pure several Hability, a dram shop is liable only for its percentage of fault in actions between the shop and a minor that involve the shop's provision of and the minor's use of alcohol. While we reject Del-Rois's arguments regarding the superior court's failure to reduce the Walker and Vaughn plaintiffs' recovery by their settlement amount and to exclude various testimony, we hold that the superior court erred by allowing the jury to award loss of enjoyment of life damages and by instructing the jury that it could award nonpecuniary damages to Walker's sister. Likewise, we hold the superior court erred in instructing the jury that it could award damages to the decedents' parents for loss of consortium for the decedents' post-majority period. We therefore vacate the judgment against DelRois and the various awards to the Walker and Vaughn plaintiffs and remand for modification.

II. FACTS AND PROCEEDINGS

This case arises from an ATV accident in which two boys died. While the parties dispute the facts, it appears that sometime in the late evening of June 24, 1996, or the early morning of June 25, 1996, minors Justin Vaughn and Robert Walker (collectively "the decedents") both consumed alcohol they had purchased at DelRois Liquor Store.2 After *1141drinking, the decedents and Crystal Brueggeman rode an ATV northeast along a beach adjacent to the Knik River, with Vaughn driving.3 At about four o'clock in the morning, Vaughn turned the ATV off of the beach and drove southwest down an access road 4 that connected the beach to Knik River Road. Vaughn drove along the access road, through property owned by Raone Bingham,5 and erossed onto property owned by the federal government. Raone's son, Carl Bingham, had strung a cable across the access road on the federal land to prevent trespassers from entering the Bingham property. The ATV struck the cable, killing Vaughn and Walker within seconds or minutes.6 It is unknown whether they suffered. Robert Walker's parents, Donna and William Walker, and sister, Rhonda Walker, were notified of the accident at approximately seven o'clock that same morning and arrived on the scene in time to view the decedents' bodies.

The personal representatives of the decedents' estates and the decedents' families 7 (collectively "the Walker and Vaughn plaintiffs") sued several parties in superior court to recover damages resulting from the accident. They sued DelRois for providing aleo-hol to the underage decedents and the State for failing to maintain the access road free of hazards. The Walker and Vaughn plaintiffs also sued Raone and Carl Bingham for erecting the cable that killed their sons, but the plaintiffs and Binghams eventually settled these claims. 8 The personal representatives of the decedents' estates sued to recover for the decedents' pain and suffering, loss of enjoyment of life, and loss of future earnings. The decedents' families-including Justin Vaughn's parents (Donald and Donna Vaughn) and Robert Walker's parents (William and Donna Walker) and sister (Rhonda Walker)-sought to recover damages for emotional distress and loss of consortium.9

The State moved for summary judgment, arguing that it did not own the land on which the access road was located and that there was no other basis for holding the State liable for failing to maintain the access road. The superior court agreed and dismissed all claims against the State. The Walker and Vaughn plaintiffs appeal.

The Walker and Vaughn plaintiffs' claims against DelRois proceeded to a jury trial. The superior court provided a special verdict form to the jury. In answering questions on this form the jury made several factual findings, including the damages suffered by each plaintiff, and apportioned percentages of fault for the accident. The jury found that DelRois provided alcohol to the decedents and that this act was a cause of the accident. It apportioned to DelRois thirty-five percent of the fault for the accident. The jury apportioned twenty-five percent of the fault for the *1142accident to Justin Vaughn and two percent to Robert Walker.10 The jury also valued the loss of the decedents' estates-the decedents' pain and suffering, loss of enjoyment of life, and loss of future earnings-and the loss of the decedents' families-emotional damages and loss of consortium.11

The superior court entered judgment in favor of the Walker and Vaughn plaintiffs. The court further ordered DelRois to pay damages not only for its share of responsibility for the accident, thirty-five percent, but also the decedents' share of responsibility, twenty-seven percent total.12 The court reasoned that DelRois could not reduce its share of responsibility by that of the decedents' because the court found that Alaska statutes and case law did not permit a comparative negligence defense. DelRois appeals.

The certificate for distribution of the final judgment was mailed by the clerk of court on November 11, 2005. The Walker and Vaughn plaintiffs moved for attorney's fees on May 12, 2006. DelRois opposed the motion on untimeliness grounds. After considering supplemental memoranda, the court decided to award fees despite the lateness of the motion. The court awarded partial attorney's fees of more than $160,000 under the "contested with trial" schedule of Civil Rule 82(b)(1). DelRois has filed a separate appeal from this award which we consider with its appeal on the merits.

III. THE WALKER AND VAUGHN PLAINTIFFS' APPEAL

The Walker and Vaughn plaintiffs appeal the superior court's determination that the State did not have a duty to maintain the access road and keep it free from hazards. To understand their claims, it is helpful to understand the access road's history.

The access road runs northeast through two pieces of land. These pieces of land share a common border running north and south. Both pieces of land are bordered on the north by the Knik River. The Bingham family has owned the eastern piece of land for all time periods relevant to this case. As we explain below, the federal government has owned the western piece of land for all time periods relevant to this case.

In the early 1970s the State began planning to construct Knik River Road. The road was to run east to west along the southern portions of both pieces of property. The problem for the State was that it did not own either piece of land.

With respect to the Binghams' land, the State merely condemned the land it needed for its right-of-way. The Binghams objected and claimed that construction of Knik River Road would sever the southwest corner of their land. The State and the Binghams settled this dispute by agreeing that the State would take title to the severed portion *1143of land and compensate the Binghams accordingly. Of particular relevance to this appeal, the State in the settlement agreement promised that the access road would remain a "public road" where it crossed federal land.

The State had greater difficulties, however, obtaining a right-of-way across the western property. Before 1971 the western piece of property was federal land managed by the Federal Bureau of Land Management (BLM). In 1971 Congress withdrew this land in the Alaska Native Claims Settlement Act.13 In 1972 the State requested that BLM grant the State a right-of-way to become Knik River Road. BLM denied this request14 In 1985 the State again applied to BLM for a right-of-way. The application requested a 200-foot-wide right-of-way through the federal land. In 1987 BLM finally granted the State a 100-foot-wide right-of-way along Knik River Road, extending fifty feet on each side of the centerline of Knik River Road.

In 1986 the Binghams strung a cable across the access road to keep trespassers off of their land. Carl Bingham placed the cable roughly 100 feet from the centerline of Knik River Road, fifty feet beyond the State's right-of-way. Between 1986 and the time of the decedents' accident, the cable caused at least one other accident: in 1990, a car turned off of Knik River Road and collided with the cable, sustaining minor damage. The Binghams notified the State of this accident and a state trooper filed a report.

As of the decedents' accident, the access road ran from Knik River Road, through federal land-including the portion of the access road across which Carl Bingham strung the cable-and onto the Binghams' property. The State has never designated the access road as part of the state highway system and has never recognized the access road as a state-owned right-of-way.

Before trial, the State moved for summary judgment, arguing that it had no duty to maintain the access road or keep it free from obstruction and thus was not liable for the accident. The Walker and Vaughn plaintiffs presented a number of theories in their opposition to the State's motion in support of such a duty. The superior court granted the State's motion for summary judgment.

A. The Superior Court Correctly Held that the State Did Not Have a Contractual Duty To Maintain the Access Road.

The Walker and Vaughn plaintiffs argue that the State had a contractual duty to maintain the access road, arising from its 1974 settlement with Carl Bingham in the condemnation action. In the 1974 settlement, the State agreed that "the two presently constructed access roads connecting defendant's remaining property with the Knik River Road are public roads." The plaintiffs contend that the term "public road" is ambiguous, both in legal and common usage, and thus should be construed in their favor on summary judgment to include a promise by the State to protect and maintain the access road for the benefit of the traveling public. The plaintiffs claim that extrinsic evidence shows that the State intended to maintain the access road.

The State answers that the agreement between it and Carl Bingham did not obligate the State to maintain the access road for the benefit of the Binghams and certainly not for the benefit of third parties. The State argues that this settlement merely obligated the State to preserve access on the road to the Bingham property for the Binghams themselves.

We review grants of summary judgment de novo.15 The goal of contract interpretation is to give effect to the reasonable expectations of the parties.16 In pursuit of this goal, we consider the contract's lan*1144guage as well as relevant extrinsic evidence-including subsequent conduct of the parties.17 While contract interpretation is generally a matter of law,18 and thus appro priate for summary judgment, factual questions may arise with respect to extrinsic evidence or the parties' intent.19 Summary judgment is appropriate only if after making all reasonable inferences about such open factual questions in favor of the nonmoving party, the moving party is still entitled to judgment as a matter of law.20

As an initial matter, we agree with the Walker and Vaughn plaintiffs that the language of the agreement is ambiguous. The State promised that the access road would be a "public road." The plain meaning of the term "public road" is merely a road that the public may freely use.21 The term "public road" does not appear to have any particular meaning in Alaska law-it is not defined either in Alaska statutes or regulations. While there are numerous roads in Alaska that are accessible to the public that the State does not maintain,22 there are also a vast number of roads used by the public that the State does maintain. Given these contradicting facts, it would be possible based on the settlement's language-though not necessary-for the State or Carl Bingham to construe the settlement as obligating the State to maintain the access road. Accordingly, we must look to the extrinsic evidence surrounding the settlement to determine whether the State had such an obligation.

As another initial matter, we must accept that the State has never maintained the access road because there is insufficient evidence to support a reasonable inference to the contrary.23 The State has only maintained the portion of the access road where it connects to Knik River Road. From a photograph that was taken after the accident of the portion of the access road across which the Binghams strung the cable, that portion appeared completely unmaintained. 17 AAC 20.040 generally prohibits the Department of Transportation and Public Facilities from maintaining roads that the State has not designated as highways, such as the access road. It is normal for the State to remove obstacles from state-maintained roads, but the Binghams left the cable across the access road for a decade before the accident. This strongly suggests that the State has never maintained the access road.

The Walker and Vaughn plaintiffs provide no evidence to the contrary. They cite the deposition testimony of Daniel Beardsley, the Chief Right-of-Way Agent for the Alaska Department of Transportation and Public Facilities, Central Region, from 1987 through 1994. But Beardsley testified that the State only placed and maintained gravel on the entrance to Knik River Road to allow travel between this road and the access road. The Walker and Vaughn plaintiffs also cite the deposition of Chris Kepler, maintenance manager for the Department of Transportation. The plaintiffs highlight that Kepler admitted that the Department of Transportation might have relied upon an erroneous map that showed the State's right-of- way extending 100 feet from the centerline of Knik River Road, just past where the Bing-hams placed the cable. But Kepler testified, as Beardsley did, that the Department of Transportation only maintained the gravel on *1145Knik River Road. Accordingly, we cannot reasonably infer, for the purposes of summary judgment, that the State has maintained any significant portion of the access road.

Turning now to the main issue-whether extrinsic evidence shows that the condemnation settlement contractually obligated the State to maintain the access road-it is clear that the State had no such obligation. The fact that the State has never maintained the access road provides the strongest evidence that it was not contractually obligated to do so. 24 If Carl Bingham had intended the condemnation settlement to contractually obligate the State to maintain the access road, he likely would have complained at least onee during the twenty years following the execution of that agreement that the State was in breach. Yet the record does not disclose such a complaint. Indeed, the Binghams performed at least some maintenance on the access road themselves, plowing the road in the winter"25

Rather, the evidence suggests that the State and Carl Bingham ostensibly entered the settlement for two other, unrelated purposes. First, the State and Bingham needed to settle the amount of compensation that the State would provide Bingham for the land it had taken from him. Second, the State and Bingham wanted to ensure that Bingham would continue to have use of the access road for the purpose of getting to his property. The access road was one of two roads by which Bingham could reach his property before the State built Knik River Road. As described above, in the early 1970s, the status of the land on which the access road sat was in flux. The State sought to protect Bingham's use of this road throughout these changes and into the future. Thus, the State and Bingham had two pressing issues in mind when entering the settlement-compensating Bingham and preserving his use of the access road. Both of these issues could be resolved without requiring the State to maintain the access road.

B. The Superior Court Correctly Held that the State Did Not Have a Tort Duty To Remove the Cable from the Access Road.

The Walker and Vaughn plaintiffs argue that the State breached a tort duty to keep the access road free from eneroach-ments. The question here is the existence of a tort duty of care. This is a question of law, which we review de novo.26 Absent an appli cable duty based on statute, regulation, contract, or existing common law tort doctrine, relevant considerations as to whether a duty of care exists include the foreseeability of harm, the connection between the allegedly tortious conduct and the injury, the moral blameworthiness of the conduct, prevention of future harm, the burden on the defendant and community of imposing such a duty, and the possibilities of insuring against such harms.27

There is a compelling reason for us to reject imposing a tort duty upon the State: the Department of Transportation has already considered the question and has determined that the State should not maintain such roads. This policy is implemented in 17 AAC 10.020(g), which provides that "[the burden and cost of maintaining a driveway or *1146approach road within a highway right-of-way is upon the lands served by a driveway or approach road." Similarly, 17 AAC 20.040 states that "[nlo road maintenance of any nature shall be performed by the state on a highway which is not part of the Alaska Highway System, except by reimbursable agreement." We will not lightly impose a duty upon the State to act in contravention of the informed judgment of an agency.28 The Walker and Vaughn plaintiffs' arguments are insufficient to justify a departure from the Department of Transportation's assessment.

The Walker and Vaughn plaintiffs also argue that the State's breach of its contractual obligation to maintain the access road makes the State liable not only in contract, but also in tort. This argument fails in light of our holding that the State had no such contractual obligation. Further, we have previously rejected the argument that a breach of contract alone-without an independent viable theory of tort recovery-could give rise to damages in tort.29

The Walker and Vaughn plaintiffs further contend that the State's mistaken belief that it had a duty to maintain the Knik River Road right-of-way up to 100 feet beyond the centerline of that road-a portion of land that included the cable-gave rise to an actual duty to do so. In our discussion of the Walker and Vaughn plaintiffs' contract claim, we determined that the evidence cannot reasonably be interpreted to support a factual conclusion that the State maintained the access road. Moreover, even if the State erroneously believed that it had an obligation to maintain the access road, this belief would not give rise to an actual obligation to do so. Generally, a defendant's mistaken view of the law does not alter its actual legal obligations.30 Indeed, the law of negligence, by definition, imposes liability upon defendants who may not have known that their conduct was tortious. The law seeks to impose tort duties where they are socially desirable and, conversely, withholds tort duties where they are socially undesirable. 31 If we would otherwise refuse to impose a duty on the State to maintain the access road, then we will not impose one simply because the State believed it existed.

The Walker and Vaughn plaintiffs additionally argue that the State's creation and maintenance of a gravel connection between Knik River Road and the access road obligated the State to maintain the entire access road. But it is inappropriate to impose liability on the State for the maintenance of any access road that happens to connect to a state-maintained road. We agree with the superior court's analysis of this contention:

The principle distilled from plaintiffs' argument is that every time the state connects a private road, driveway, or trail with a state highway, the state assumes a duty to guarantee safe unobstructed passage for the length of the private road, driveway, or trail. The court must conclude that such a far reaching conclusion cannot stand, especially in Alaska where long stretches of rural and urban state highway connect with innumerable [trails], paths, driveways, public and private roads.

Finally, the Walker and Vaughn plaintiffs argue that the State's knowledge of the danger that the cable posed, following its investigation of the prior car accident involving the same cable, gave rise to a tort duty to remove the cable or to warn travelers of its danger. The factors relevant to the imposi*1147tion of a tort duty provide mixed support for the proposition that where the State has discovered a danger on non-state land, it should have a duty to remove that danger. Given that the cable had already caused a car accident, the State could foresee the danger that the cable posed. 32 And removing the cable would have been nearly costless and would have prevented this accident, unless it was reinstalled.33 However, the State was not morally culpable for failing to remove a hazard on non-state property.34 Also, the costs to the community of imposing this burden on the State are high: it would require the State to enter non-state property and dictate the use of that property to non-state actors.35 We find that the mixed results of the tort duty analysis are insufficient to override the Department of Transportation's considered decision that the State should not be in the business of maintaining driveways, approach roads, and roads not designated as highways.

C. The Walker and Vaughn Plaintiffs' Estoppel Arguments Are Without Merit.

The Walker and Vaughn plaintiffs argue that the doctrines of quasi-estoppel, equitable estoppel, and collateral estoppel bar the State from arguing that it had no duty to keep the access road free from hazards. For each type of estoppel, the plaintiffs make the same general argument: by entering into the condemnation settlement and by using erroneous maps, the State represented to the public that it has been maintaining the access road-a representation upon which the decedents relied to their demise. Whether the State should be estopped from arguing that it had no duty to maintain the access road presents questions of law which we review de novo.36

The doctrine of quasi-estoppel precludes a party from taking a position in litigation that is inconsistent with a position taken earlier by that same party-but only if allowing that party to maintain the latter, inconsistent position would be unconscionable. 37 The doctrine of equitable estoppel bars a speaker from taking a position inconsistent with a prior statement when another person has reasonably and detrimentally relied on the earlier statement.38 Equitable estoppel is similar to quasi-estoppel in form. In function, however, equitable estoppel seeks to protect parties' reasonable expectations,39 whereas quasi-estoppel seeks to pro tect the integrity of litigation.40

Neither quasi-estoppel nor equitable estoppel bars the State from arguing that it had no duty to maintain the access road. The Walker and Vaughn plaintiffs' estoppel arguments depend upon a conclusion that the State had publicly stated that it had a duty to maintain the road. But such a conclusion has no justification on this record. The Walker and Vaughn plaintiffs' quasi and equitable estoppel arguments are unfounded and the superior court correctly rejected them.

The doctrine of collateral estop-pel prevents parties from relitigating issues that a court has already decided against them. Collateral estoppel will bar a party *1148from relitigating an issue adjudicated in a prior action if four conditions are met: (1) the party was a party or in privity with a party in the initial action, (2) the issue adjudicated in the prior action is identical to the issue the party seeks to relitigate, (8) the issue was resolved in the first action by a final judgment on the merits, and (4) the determination of the issue was essential to the final judgment.41

The Walker and Vaughn plaintiffs argue that the State's stipulated settlement in its condemnation action, which was incorporated into a final judgment, obligated it to maintain the access road and thus that the State is collaterally estopped from relitigat-ing this issue here. This argument is without merit. No court has adjudicated the seope of the State's duties under the condemnation settlement. With respect to their collateral estoppel argument, the Walker and Vaughn plaintiffs again assume the conclusion that they are trying to prove: the State promised to maintain the access road free from hazards. Accordingly, this argument fails and the superior court correctly rejected it.

IV. DELROISS APPEAL

A. The Superior Court Erred by Holding that Delrois Should Bear the Decedents' Share of Responsibility for the Accident.

Using a special verdict form provided by the court, the jury found that the decedents together bore twenty-seven percent of the responsibility for the accident and that Del-Rois bore thirty-five percent. The court then added these percentages together and held that DelRois must pay sixty-two percent of the total damages.

DelRois argues that the superior court erred by finding that Alaska's dram shop statute, AS 04.21.020, is not subject to Alaska's most recent tort reform which enacted pure several liability. While DelRois acknowledges that our holding in Loeb v. Rasmussen'42 suggests that the doctrine of comparative negligence does not apply where the victim is a minor and his negligence results from the defendant's illegal sale of alcohol to him, DelRois argues that AS 09.17.080 abrogated Loeb and now imposes a system of pure comparative negligence where several liability applies to all parties-including minors.43

The Walker and Vaughn plaintiffs oppose this argument. They generally argue that the newer statutory system is too broad to abrogate our prior determination that statutes barring the sale of alcohol to minors represent "exceptional statutes" that preclude a vendor from asserting the minor's fault in a negligence suit.

This court has not yet had the opportunity to address the status of Alaska's dram shop law in light of Alaska's adoption of pure several liability. Whether a defendant's liability arising from the sale of alcohol to a minor is reduced by that minor's negligence in purchasing and consuming the alcohol is a question of law which we review de novo.44

We hold that the enactment of pure several liability in AS 09.17.080 represents a changed condition 45 and that AS 04.21.020 is *1149subject to pure several Hability. Accordingly, we conclude that our prior holding in Loeb v. Rasmussen has been superseded by AS 09.17.080 and that DelRois is responsible only for its own share of the damages.

1. Alaska's transition to pure comparative negligence with pure several lability.

Under Alaska's former joint and several liability tort system, each tortfeasor could be held responsible for all damages resulting from a negligent act regardless of the individual tortfeasor's share of the fault. 46 The first step toward our current system of comparative negligence with pure several liability came in 1970 when the legislature granted joint tortfeasors the right of contribution by enacting the Alaska Uniform Contribution Among Tortfeasors Act 47 The next step came in 1975 when we rejected the doctrine of contributory negligence and adopted the doctrine of comparative negligence in Kaatz v. State 48 However, Kaatz only adopted pure comparative negligence and did not alter Alaska's status as a joint and several Hability jurisdiction.49

In 1986 the legislature passed the Tort Reform Act,50 which was modeled after the Uniform Comparative Fault Act. That legislation codified a broad comparative negli-genee doctrine 51 but retained a version of joint and several liability.52 The 1986 version of AS 09.17.080 provided:

Apportionment of damages. (a) In all actions involving fault of more than one party to the action, including third-party defendants and persons who have been released under AS 09.16.040, the court, unless otherwise agreed by all parties, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating

(1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and

(2) the percentage of the total fault of all the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under AS 09.16.040.

(b) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault, and the extent of the causal relation between the conduct and the damages claimed. The trier of fact may determine that two or more persons are to be treated as a single party if their conduct was a cause of the damages claimed and the separate act or omission of each person cannot be distinguished.

(c) The court shall determine the award of damages to each claimant in accordance with the findings, subject to a reduction under AS 09.16.040, and enter judgment against each party liable. The court shall also determine and state in the judgment each party's equitable share of the obligation to each claimant in accordance with the respective percentages of fault.

(d) The court shall enter judgment against each party liable on the basis of joint and several liability, except that a party who is allocated less than 50 percent of the total fault allocated to all the parties may not be jointly liable for more than twice the percentage of fault allocated to that party.

The 1986 legislation was amended in 1988 when Alaska voters passed the Tort Reform Ballot Initiative, which replaced joint and *1150several liability with pure several lability.53 The new portion of the AS 09.17.080, which went into effect in 1989,54 provided:

(d) The court shall enter judgment against each party liable on the basis of several liability in accordance with that party's percentage of fault.

Thus, Alaska has a system of pure comparative negligence with several lability. Alaska Statute 09.17.060 promulgates the basic comparative negligence principle that a claimant cannot recover the portion of damages attributable to the claimant's own fault for the harm complained of. Alaska Statute 09.17.080 promulgates the additional rule that of the total fault for harm attributable to defendants-not the claimant-the court shall enter a judgment against each defendant only for the defendant's own percentage of the total fault.55

2. Our holding in Loeb v. Rasmussen

The litigation in Loeb v. Rasmussen arose from events that transpired on June 25, 1983.56 The Cushman Boxboy (Boxboy), a liquor store in Fairbanks, sold alcohol to Teresa Bouffioux, a minor, and another minor without asking either customer to furnish proof of age.57 Bouffioux then drove a car and was injured in a one-car accident.58 She was charged with driving while intoxicated after a blood sample revealed a blood alcohol level of 0.155.59 Approximately one year later, Bouffioux committed suicide.60 The personal representative of her estate sued Leo Rasmussen and L & L Investments, doing business as Boxboy, for damages related to Bouf-fioux's injuries and her ultimate death.61

Boxboy argued that our judicial adoption of comparative negligence should apply and allow an allocation of fault to Bouffiousx.62 Boxboy was unable to rely on Alaska's tort reform statutes because the claims in Loeb accrued in 1983 and possibly 1984, before the legislature's codification of comparative negligence in 1986 and before the ballot initiative enacting pure several liability in 1988.63

We rejected Boxboy's argument after determining that AS 04.21.020, a statute allowing (but not providing) civil Hability for liquor licensees who furnish alcohol to persons under twenty-one, was an "exceptional statute" designed to protect minors.64 We recognized that the application of comparative negligence was in tension with Alaska's policy against underage drinking.65 We concluded, after canvassing other jurisdictions,66 that the benefit of applying our system of comparative negligence was outweighed by the risk of undermining Alaska's policy against underage drinking. However, we specifically declined to rule on the implications of the 1988 voter initiative which enacted our current scheme of pure several liability.67

38. AS 04.21.020 is no longer an "exceptional statute" in light of the enactment of pure several liability.

We have previously recognized that a system of comparative negligence can coexist *1151with either joint and several liability or pure several liability. 68 However, the choice between joint and several liability and pure several liability is ultimately a choice between two fundamentally different policies. Accordingly, this case requires us to consider whether AS 04.21.020 still represents an "exceptional statute" in light of Alaska's most recent tort reform initiatives.

Before assessing the continued vitality of our designation of AS 04.21.020 as an exceptional statute, it is important to understand the process that ultimately leads to this designation. A statute is not found to be "exceptional" merely by examining it in a vacuum. Rather the "exceptional" designation is the result of an analysis of two applicable but competing policies A statute is found "exceptional" when a court determines that the policy goals of one statute are so compelling that the risk the application of another statute poses of undermining those goals becomes unacceptable.69 Under these cireumstances, a court deems the former statute "exeeptional" so as to avoid application of the latter statute.

a. The exceptional statutes doctrine is in harmony with joint and several liability but is in tension with pure several liability.

The primary purpose of the doe-trine of joint and several liability, the type of liability that applied in Loeb, is to make the plaintiff whole. Joint and several lability achieves this goal by allocating the risk of a judgment-proof or otherwise immune defendant to other co-defendants. Thus, the doe-trine represents a social policy choice of making a plaintiff whole over any concerns that excessive liability could be imposed on an individual defendant.

The primary purpose of pure several liability is to shield an individual defendant from liability in excess of the defendant's relative fault. This system thus places the risk of a judgment-proof or otherwise immune defendant on the plaintiff. As a result, it does not provide as strong a guarantee of full compensation for a plaintiff as a system of joint and several liability. But by sacrificing this policy goal, pure several liability cabins the liability imposed on an individual defendant. It does so in a number of ways. First, it blunts the effectiveness of "shotgun" pleading, whereby a plaintiff sues wealthy defendants who may be only marginally responsible for the plaintiffs injury. Second, it prevents the use of wealthy defendants as social insurers against the full loss suffered by a plaintiff. Finally, and most fundamentally, it implements the notion that a defendant should only pay for the defendant's fair share of damages.

A system of joint and several liability does not conflict with the conclusion reached in Loeb that AS 04.21.020 represents an exceptional statute. Joint and several liability emphasizes making the plaintiff whole. The exceptional statutes doctrine works toward this same goal by making the liquor provider liable not only for its conduct but also for the impaired patron's subsequent conduct.

But Alaska's current system of pure several liability conflicts with the exceptional statutes doctrine and does not support a finding that AS 04.21.020 is an exceptional statute. The exceptional statutes doctrine violates the three methods by which pure several liability is meant to cabin an individual defendant's liability. First, the doctrine encourages a minor to sue the liquor provider even if the liquor provider's culpability was minuscule relative to the minor's fault. Even where a minor's behavior was exceedingly egregious, a jury may find a liquor provider at least partially at fault for damages resulting from the minor's intoxication. Second, it effectively causes the liquor provider to provide insurance for all of the minor's conduct after furnishing alcohol. But if *1152the minor leaves the premises, the provider has no ability to control the minor's subsequent decisions. Finally, and most importantly, the exceptional statutes doctrine creates immunity for one party who is at fault. The liquor provider must pay not only for its share of damages but also for damages attributable to the minor. This creates the exact problem of immunity 70 that drove tort reform toward pure several liability-by definition, the exceptional statutes doctrine means that one defendant will be paying damages attributable to someone else's irresponsibility. Thus, the determination in Loeb that AS 04.21.020 is an exceptional statute is in direct conflict with the policies underlying the voters' adoption of pure several liability.

We must therefore determine if the exceptional statute designation should survive this inherent conflict with pure several liability. Notably, this case does not involve conflicting statutes. Alaska Statute 09.17.080 unequivocally adopts several liability. Alaska Statute 04.21.020 does not expressly create any exceptions to standard rules of liability. Rather, Loeb went beyond the statutory text and reached a holding that we thought best effectuated the statute's underlying policy. There is no textual conflict between the statutory provisions of AS 09.17.080 and AS 04.21.020. The only conflict arises when we attempt to extend and implement the policies that those statutes represent.

Adopting the Walker and Vaughn plaintiffs' position would require that we diverge from AS 09.17.080 to pursue the policy supporting AS 04.21.020. This path would require us to abandon the policy goals of AS 09.17.080: ensuring individual responsibility and shielding defendants from unfair liability. However, adopting DelRois's position would allow us to follow AS 09.17.080 and AS 04.21.020 while still, as discussed below, effectuating much of the policy underlying AS 04.21.020.71

b. Other jurisdictions' experiences support our conclusion that comparative negligence with pure several liability is consistent with Alaska's policy against underage drinking.

Because minors are unable to meaningfully assess the risks associated with the use of alcohol, Alaska has a long-standing, strong policy against underage drinking. 72 Loeb was decided, in part, as an effort to effectuate this policy. 73 The rule in Loeb carries out this policy by creating a strong incentive for liquor licensees to comply with the law.

However, adopting comparative negligence with pure several liability is consistent with achieving Alaska's public policy against underage drinking. Comparative negligence does not absolve the liquor licensee of lHability. 74 The trier of fact will consider the vendor's actions when allocating fault between the minor and the vendor. 75 The trier of fact will also consider the minor's actions and the minor's age, maturity, and ability, or lack *1153thereof, to appreciate the risks of alcohol use. 76

All states have a strong policy against underage drinking. And yet, as discussed below, many use comparative fault in cases such as this. We also recognize that some courts have taken added steps to bolster the policy against underage drinking while simultaneously applying comparative negligence. For example, the New Jersey Supreme Court encourages the use of special jury instructions regarding the allocation of fault between a minor and dram shop in an effort to more fully address this public policy concern. 77

4. The precedents cited in Loeb no longer have persuasive force.

Loeb was decided at a time when states were divided in their treatment of a vendor's liability to a minor who purchased and consumed aleohol from the vendor. 78 Some held that comparative fault principles should be applied to dram shop litigation brought by a minor. Others refused to allocate fault to a minor. With time, many states have revisited this topic. A reexamination of the persuasive precedents from Towa, Louisiana, Minnesota, and Florida on which Loeb relied 79 reveals a general erosion of support for the position we adopted in Loeb A broader canvassing of jurisdictions confirms that our holding in Loeb now represents the minority view.

The Iowa Supreme Court determined in Slager v. HWA Corp. 80 " that "the [Iowa] legislature did not intend comparative fault to be a defense to a dram shop action." 81 But this language must be read in light of the fact that Iowa's dram shop liability statute is "meant to protect only those who have not participated in the intoxicated person's intoxication by their complicity or assumption of risk." 82 A person who purchases alcohol from a dram shop is not an "innocent person" who falls within the absolute protection of Iowa's statute. 83 In Iowa, a vendor can as sert a minor's complicity or assumption of risk, and thus bar any recovery by the injured minor, even though the vendor illegally sold alcohol to the minor. 84

*1154The Louisiana case cited for support in Loeb was decided based on contributory negligence,"85 but Louisiana now follows a scheme of comparative negligence. 86 Under Louisiana's current law, a liquor provider's lability for an illegal sale of alcohol to a minor is governed by Louisiana's general rules of negligence." 87Though no appellate court has ruled on the point, it is clear that lower courts are allowing the consideration of a minor's comparative fault in actions brought against the vendor.88

Loeb also cited an analogous Minnesota case considering Minnesota's Child Labor Standards Act. 89 The cases on which the Minnesota court relied, however, were based on contributory negligence. 90 These authorities are largely inapplicable given Alaska's adoption of comparative negligence. Moreover, the Minnesota legislature "has explicitly made dram shop lability subject to comparative fault," 91 and a Minnesota court of appeals has applied comparative fault principles in a suit brought by a minor against an alcohol provider for damages the minor incurred after becoming intoxicated. 92

Of the four jurisdictions we relied on in Loeb, only Florida appears to have retained a general rule barring the consideration of an intoxicated minor's negligence when the minor sues the dram shop. However, Florida, unlike Alaska, only provides for liability if the vendor's sale to the minor was willful. 93

We also find that the Alaska precedents cited in Loeb have lost their value in light of Alaska's recent tort reforms. Loeb and its predecessors cited Vance v. United States, 94 from the federal district court in Alaska, as persuasive authority. 95 In Vance, the district court considered a suit brought by an intoxicated adult against a club that served him too much alcohol." 96 Though no prior cases discussed the issue, the Vance court assumed that AS 04.15.020(2), the predecessor to AS 04.21.020, was an exceptional statute designed to protect minors. 97 The court reasoned that the statutory treatment of intoxicated adults should be analogous to the presumed treatment of minors. 98 *1155Accordingly, Vance was the first case in Alaska to hold that AS 04.15.020(a) was an exceptional statute designed to protect intoxicated adults and minors and thus that a vendor could not invoke such a person's negligence as a defense. 99 However, Vance was decided when Alaska was a contributory negligence jurisdiction. 100 The exceptional statutes doctrine has more effect in a contributory negligence regime because contributory negligence is an absolute defense to liability. Thus, a liquor licensee could invoke contributory negligence, thereby absolving itself of civil Hability for illegally selling to a minor or an intoxicated adult, undermining the legislature's intent of preventing minors from gaining access to alcohol.

In addition to noting the erosion of the authority cited in Loeb, we also note that the rule represented by Loeb has been subsequently rejected by other jurisdictions. For example, the Utah Supreme Court overruled its prior decision in line with Loeb in favor of a comparative negligence system' 101 The New Mexico Supreme Court, in a discussion that specifically rejected Loeb, reasoned that legislative adoption of comparative fault should apply in similar situations." 102 Many jurisdictions now apply comparative negligence in cases involving a minor's alcohol use. 103

5. Summary

We designated AS 04.21.020 an exceptional statute in light of the precedent and policy *1156that existed at the time of Loeb. However, Alaska's most recent tort reform-rejecting joint and several liability and enacting pure several liability in AS 09.17.080-changed one of these foundational policies. An examination of this new statute convinces us that the exceptional statute designation cannot coexist with the clear policy underlying AS 09.17.080. 104 Our review of other jurisdictions supports our conclusion that the holding in Loeb is from an earlier era We therefore hold that our earlier determination that AS 04.21.020 was an exceptional statute not subject to comparative negligence has been superseded by the enactment of pure several lability.

B. The Superior Court Did Not Err by Refusing To Offset the Walker and Vaughn Plaintiffs' Award Against DelRois by the Amount that They Received in Settlements from Other Defendants.

Before trial, the Walker and Vaughn plaintiffs settled their claims against Raone and Carl Bingham. Raone paid the Walker plaintiffs 105 $533,206.69 and the Vaughn plaintiffs' 106 ® $284,006.05. Carl paid the Walker plaintiffs $504,315.24 and the Vaughn plaintiffs $312,897.70. Thus, the Binghams paid the Walker and Vaughn plaintiffs over $1.6 million to settle the plaintiffs claims against them.

The superior court ignored this settlement when calculating the Walker and Vaughn plaintiffs' award against DelRois. Instead, the court simply noted each claimant's damages and imposed sixty-two percent of the liability for these damages upon DelRois. For example, the jury found that the accident caused Robert Walker $380,000 in damages. The court accordingly ordered Del-Rois to pay Robert's estate sixty-two percent of $330,000, plus prejudgment interest, even though the estate had already received a total of $518,760.96 from the settlements with the Binghams.* 107

DelRois argues that the superior court erred by not reducing the Walker and Vaughn plaintiffs' award against DelRois by the amount that the Walker and Vaughn plaintiffs received in their settlement with the Binghams. DelRois relies on the common law policy that precludes plaintiffs from receiving double recoveries, quoting this court's reference to "the common law rule embodying the sound public policy of permitting a plaintiff to receive only the amount of his adjudged damages and no more, regardless of the source of the recovery. 108 ® But we held in Petrolane Inc. v. Roble 109 that "the rule against double recovery is grounded in joint and several liability" and does not apply in the context of pure several liability.110 We reached this conclusion in part because AS 09.17.080 mandates the court to "enter judgment against each party liable on the basis of several liability in accordance with that party's percentage of fault." 111 We also relied on policy reasons-encouraging *1157settlement and avoiding windfalls to nonset-tling defendants-and followed the precedent established in most other pure several liability jurisdictions and section 16 of the Restatement (Third) of Torts. 112 In light of our decision in Petrolane, we must reject Del-Rois's argument seeking a credit for the pretrial settlements. 113

C. Witnesses Eric DuBois, Michael Poirier, and Andrew Dousette

At trial, the Walker and Vaughn plaintiffs presented the testimony of Erie DuBois, Michael Poirier, and Andrew Dousette. Each witness testified that he had purchased alcohol from DelRois while underage and that DelRois had not carded him before these purchases. They all testified that they knew that DelRois sold alcohol to minors. Additionally, Andrew Dousette testified that he witnessed Justin Vaughn purchase and consume alcohol from DelRois the evening of the accident.

DelRois objected to the use of each witness. DelRois argued that the Walker and Vaughn plaintiffs had not notified DelRois of these witnesses until the eve of trial, De-Rois contended that it had insufficient time to prepare for each witness. The superior court overruled these objections and allowed each witness to testify.

On appeal DelRois again argues that it had insufficient notice of these witnesses. Additionally, DelRois now argues that the testimony of these witnesses was inadmissible.

1. The superior court did not abuse its discretion when it allowed the testimony of Eric DuBois, Michael Poirier, and Andrew Dousette.

The Walker and Vaughn plaintiffs were unable to notify DelRois of their intent to present Erie DuBois, Michael Poirier, and Andrew Dousette as witnesses until the eve of trial, February 12, 2004. At trial, Eric DuBois explained that he worked for Robert Walker's father, William, and did not inform William until February 10 of his experience with DelRois. DuBois stated that he overheard William discussing this suit on the phone and volunteered the information about DelRois. Michael Poirier testified that he was the fiancé of Rhonda Walker, Robert Walker's sister, and stated that he did not bring his experience with DelRois to the Walkers' attention until two weeks before trial. The Walker and Vaughn plaintiffs were aware of Andrew Dousette early on in the litigation and included him on the witness list. However, they were unable to locate him until immediately before trial, at which point the Walker and Vaughn plaintiffs hired a private investigator to find Dousette. The plaintiffs notified DelRois immediately after they became aware of each witness.

The superior court's original scheduling order required the parties to submit their final witness lists by August 2000, two months before the then-scheduled trial date, but the superior court nevertheless allowed the testimony of these late-introduced witnesses. The court found that the Walker and Vaughn plaintiffs could not have secured these important witnesses sooner and had diligently notified DelRois as soon as possible. The court noted that DelRois had not used the new witnesses as a ground for a continuance motion and concluded that the late introduction of these witnesses did not significantly prejudice DelRois.

The superior court took further steps to mitigate any prejudice these witnesses might have caused DelRois. It allowed DelRois to recall these witnesses after the court had dismissed them. It permitted DelRois opportunities to speak with the witnesses privately before cross-examination. The court also assisted DelRois in discovering information it might use to impeach the witnesses' credibility, such as convictions for crimes of dishonesty. Finally, the court stated that it would entertain motions from DelRois for attorney's fees if DelRois could show that the tardy introduction of these witnesses caused DelRois additional expense.

*1158DelRois appeals the superior court's decision to allow these witnesses to testify. The Walker and Vaughn plaintiffs answer that the trial court appropriately considered the costs and benefits of allowing them to testify.

We review a trial court's decision to depart from a pretrial discovery schedule for an abuse of discretion. 114 We also review for abuse of discretion a trial court's choice of a particular sanction for a discovery violation. 115

The Alaska Rules of Civil Procedure provide the process by which parties notify each other of witnesses that they intend to present at trial Under these rules, the trial court may establish deadlines after which parties generally may not add new witnesses. 116 Civil Rule 16(e) states that courts may only modify these deadlines to prevent "manifest injustice."

Trial courts are afforded broad discretion to determine whether a situation entails a "manifest injustice" sufficient to justify departure from pretrial scheduling orders 117 In making such a determination, courts should consider several factors, including the prejudice to the opposing party, the importance of the evidence to the party seeking to introduce it, and whether that party could have more diligently obtained that evidence with earlier notice. 118

After reviewing the record as a whole and analyzing the factors relevant to manifest injustice, we conclude that the superior court did not abuse its discretion by deviating from its pretrial witness order. The superior court reasonably found that the danger of surprise or prejudice to DelRois was small.119 Moreover, as explained above, the court took steps to minimize any prejudice that might have occurred. It also found that the witnesses would provide probative testimony for the Walker and Vaughn plaintiffs regarding the likelihood that alcohol from DelRois was consumed on the night of the accident and that the witnesses could not have been secured with greater diligence.

For the same reasons, DelRois's alternative argument that the superior court erred by not precluding the testimony of witnesses introduced in violation of its discovery order also fails. Civil Rule 87 grants courts broad discretion to fashion remedies for discovery order violations, including the option of excluding evidence procured in violation of a discovery order. 120 In fashioning such remedies, Rule 37 commands courts to consider the nature and severity of the violation, the prejudice to the opposing party, and any other factors it deems appropriate. Preclusion of witness testimony is a harsh remedy, appropriate only if noncompliance is severe or willful. 121 As explained above, the superi- or court appropriately considered the prejudice to DelRois, the importance of the testimony, and the diligence with which the Walker and Vaughn plaintiffs procured these witnesses.

2. The content of the testimony did not create reversible error.

The Walker and Vaughn plaintiffs used the testimony of Eric DuBois, Michael Poirier, *1159and Andrew Dousette to support the proposition that DelRois sold alcohol to the decedents on the night of the accident. This testimony supported their theory of punitive damages because, if true, it demonstrated reckless behavior by DelRois. The Walker and Vaughn plaintiffs also used this testimony to rebut Rose Sowinski's anticipated testimony that DelRois does not sell alcohol to minors. 122

DelRois challenges the admissibility of this testimony on appeal. It argues that the only possible purpose of this testimony was to prove that DelRois sold aleohol to the decedents on the night of their accident. DelRois argues that the testimony constituted impermissible character evidence because it was evidence of DelRois's past behavior and was used by the Walker and Vaughn plaintiffs to show conformity therewith on the night of the accident. DelRois further asserts that this testimony prejudiced its case.

The Walker and Vaughn plaintiffs answer that the superior court properly admitted the testimony. They argue that the testimony rebutted DelRois's argument that it consistently carded patrons and did not provide alcohol to minors. The Walker and Vaughn plaintiffs also argue that this testimony was relevant to their claim for punitive damages. As they argued at trial, they sought to use DelRois's pattern of conduct as evidence that DelRois sold aleohol to the decedents "with reckless indifference."

When the admissibility of evidence turns on a question of fact, we review a trial court's decision on admissibility for an abuse of discretion.123 However, when admissibility turns on a question of law, we use our independent judgment in reviewing the trial court's ruling. 124

Initially, we note that DelRois did not object to the admissibility of this testimony at trial. DelRois objected only to the Walker and Vaughn plaintiffs presentation of these witnesses on such short notice. Of course, DelRois may escape its failure to object to this testimony if its admission was plain error and if there was a "high likelihood that injustice has resulted." 125 We find no such grounds for reversal for three reasons. 126

First, DelRois appeared to consent to the admissibility of this testimony to prove that it provided alcohol to minors, stating "if they got one or two witnesses that will say, 'Yeah, we bought at Del Rois, that's one thing, but if they start bringing in a parade of people, then it is a whole different thing." Given this apparent consent, and the fact the now-challenged testimony is of the type that Del-Rois said it would not object to, DelRois has a heavy burden to convince us to follow a different path.

Second, the Walker and Vaughn plaintiffs used the testimony, in part, to show a pattern of reckless alcohol sales to minors in support of their punitive damages claim. This was permissible "other acts" evidence used to demonstrate potentially reckless behavior by DelRois. 127 The superior court did *1160not give a limiting instruction to the jury about the permissible and impermissible uses of this testimony. Alaska Rule of Evidence 105 states that when evidence is admissible for one purpose but not another, the court shall restrict the evidence to its proper scope and instruct the jury accordingly-but only upon request.128 Here, DelRois did not re quest a limiting instruction, and thus cannot complain that none was given.

Third, we affirm the superior court's admission of DuBois's, Poirier's, and Dousette's testimony because their testimony did not substantially prejudice DelRois. While the trial court properly found that these witnesses were important to the Walker and Vaughn plaintiffs' case, the most important components of the testimony were not general habit evidence. Rather, Andrew Dousette testified that on the evening of the accident, he witnessed Justin Vaughn purchase alcohol from DelRois. Justin Rucker, another witness at the trial, testified that he independently purchased alcohol from DelRois on the night of the accident and joined a number of his friends, including Justin Vaughn and possibly Robert Walker, at a party that night. This evidence is probative of whether DelRois sold alcohol to the decedents the night of the accident and would be sufficient to support the jury's findings that DelRois had done so. Therefore, to the extent the admission of propensity evidence was erroneous, we hold that it likely did not affect the substantial rights of the parties. 129

D. The Jury Instructions and Special Verdict Forms

After the close of trial, the court gave the jury written instructions and provided a set of special verdict forms. These instructions and verdict forms were the product of extended debate between the parties. DelRois claims that a number of the instructions and forms were erroneous.) 130

We review jury instructions and special verdict forms de novo. 131 To overturn a jury instruction or special verdict form, we must conclude not only that the instruction or special verdict form was legally erroneous, but also that the verdict would probably have been different but for the error.132 Additionally, if a party fails to object to a jury instruction, we will review the challenge on appeal only for plain error 133 Where a jury instruction or special verdict form is legally correct and the question is whether the evidence justified its use, we review the superior court's use of the instruction for an abuse of discretion. 134

1. The superior court erred by allowing the jury to award damages to the decedents for their loss of enjoyment of life.

Over DelRois's objection, the jury instrue-tions allowed the jury to award the estates of the decedents "the value of the loss of enjoyment of life from the life the decedents would have enjoyed." The special verdict forms similarly provided for such an award. The jury awarded each estate at least $10,000 for loss of enjoyment of life. 135

*1161DelRois now reasserts its challenges to this instruction and special verdict form. DelRois argues that "(there can be no loss of enjoyment of life after death, as that is something only a living person can experience."

When a plaintiff's death results from a defendant's tortious conduct, AS 09.55.580(a) allows the plaintiff, through a personal representative, to assert a claim for wrongful death and to recover any "damages the court or jury may consider fair and just." The statute not only creates a wrongful death cause of action, but also regulates the damages a court may award. 136 Subsection (a) clearly limits the damages recoverable by the estate of a decedent without dependents to pecuniary damages: "When the decedent is survived by no spouse or children or other dependents, the amount recovered shall be administered as other personal property of the decedent but shall be limited to peeuni-ary loss." '137 Because neither decedent had any dependents, 138 AS 09.55.580(a) limited the recovery of the estates to pecuniary harm, which does not include intangible loss of enjoyment of life. 139

In light of our holding, the awards for both past and future non-economic loss for the Estates of Robert Walker and Justin Vaughn must be vacated. The awards for future non-economic loss were purely for the decedents' loss of enjoyment of life. While the instructions for past non-economic loss included some permissible considerations-for example, pre-death pain and suffering under the survival statute AS 09.55.570 140-these awards cannot be sustained because the instruction also allowed assessment of impermissible damages for the loss of enjoyment of life.

2. The superior court erred by instructing the jury that it could award nonpecuniary damages to Robert Walker's sister, Rhonda.

The superior court instructed the jury that it could "compensate each plaintiff for the sorrow, mental distress and grief that they may have suffered or will suffer because of the death of Robert Jason Walker and Justin Daniel Vaughn." DelRois's attorney objected, stating that "I don't want to belabor this, but I just want to make sure the record reflects that I object to Rhonda Walker being included here." In response, the superior court stated, "I'm permitting it based on the testimony that I heard." The jury awarded $100,000 to Rhonda for her emotional harm resulting from her brother's death.

On appeal, DelRois argues that in wrongful death cases where the decedent dies without dependents, Alaska permits only parents to recover damages for their emotional harm.

Both parties agree that Alaska law does not expressly recognize a nondependent sib-Ting's right to recover nonpecuniary damages in a wrongful death case. As described above, the statute providing a wrongful death cause of action, AS 09.55.580, does not permit any recovery of nonpecuniary harms where the decedent dies without dependents.

Despite this statutory prohibition, the Walker and Vaughn plaintiffs argue that we should create a new common law cause of action for the siblings of wrongful death vie-tims. We decline the Walker and Vaughn plaintiffs' invitation to create a new cause of action. Alaska Statute 09.55.580 broadly governs the recovery that may be had by the *1162victim of a wrongful death and by his close relatives. It unambiguously bars nondepen-dent siblings from recovering nonpecuniary damages 141 Alaska Statute 09.15.010, which allows nondependent parents of a wrongful death victim to recover nonpecuniary damages, is an exception to AS 09.55.580, but it does not apply to siblings of a wrongful death victim. Thus, the Alaska statutes do not allow the nondependent sibling of a wrongful death victim to assert a wrongful death claim for nonpecuniary harm. 142

The Walker and Vaughn plaintiffs also argue that Rhonda had a viable claim for negligent infliction of emotional distress (NIED) and thus that the superior court properly allowed her to collect damages for her emotional harm. DelRois acknowledges that Rhonda may have had a viable NIED claim. A negligent defendant breaches the standard of care owed to a plaintiff who suffers emotional harm after witnessing physical harm to her loved ones if three conditions are met: (1) the plaintiff was located near the seene of the accident; (2) the emotional harm resulted directly from observing the seene of the accident, rather than learning of it later; and (8) the plaintiff and victim were closely related. 143 We have re peatedly held that the plaintiff need not actually witness the accident and that merely witnessing an injured or dead family member at the scene of the accident is sufficient to assert an NIED claim. 144 Also, courts widely hold that siblings of the accident victim are sufficiently closely related to assert NIED claims. 145

Here, Rhonda arrived at the seene of the accident in time to view her brother's dead body. At trial, Rhonda testified as follows:

Q. Did you say the police showed up?

A. Yeah, at 6:00 in the morning. And they told me that they needed to talk to my parents. So I told my parents, you know, that they were there and they were there about my brother. And I went to the bathroom and when I came up they were-my mom was screaming and erying and I didn't know what was going on, and they told me that he had gone into an accident and he died.

And I didn't believe them, so we went to the accident. And from the top of the hill all you could see was two bodies covered in yellow tarps. And when we walked down, I was standing over my brother and I didn't know it was him. They wouldn't let us look at him.

All I could see was his shoes. He was on his side, his left side. And Justin was under the other tarp and all I could see was blood all around where his head would be.

She also testified that she suffered emotional harm as a result, stating, "I know it has an impact on me, because I have nightmares *1163over it." Thus Rhonda may have had a viable NIED claim.

However, the court's instructions to the jury were incorrect if Rhonda's only claim was NIED. As DelRois argues, "the special verdict form ... grouped damages for emotional distress and loss of consortium so it is impossible to determine what the jury awarded, making the entire award subject to reversal." Plaintiffs asserting NIED claims may only recover damages for their emotional harm if the harm results from a view of the injured victim soon after the accident. 146 Here, the court's special verdict forms broadly allowed the jury to award to Rhonda "Non-Economic Loss," including "emotional distress, sorrow, mental anguish and grief, loss of society, comfort, care, guidance, love, support, service and assistance, companionship and consortium." It did not distinguish between emotional harm resulting from viewing the victim at the accident scene and emotional harm resulting from Rhonda's loss of her brother. 147

The superior court's jury instructions and special verdict forms with respect to Rhonda's emotional damages were erroneous because the jury was permitted to award Rhonda damages to which she was not entitled under an NIED theory. We accordingly vacate the award to Rhonda.

3. The superior court erred by instructing the jury that it could award damages to the decedents' parents representing their loss of consortium for the period after the decedents would have reached the age of majority.

Over DelRoisg's objection, the superior court's special verdict form provided separate sections for the jury to award the decedents' parents nonpecuniary damages representing their losses during the periods after which the decedents would have reached the age of majority. The jury accordingly awarded $100,000 to each of the four parents for their nonpecuniary loss during this period.

DelRois argues that parents generally may recover damages for the death of their child that only represent the period of time before that child reaches the age of majority. The Walker and Vaughn plaintiffs answer that the superior court properly allowed the decedents' parents to recover nonpecuniary damages for all time periods after the accident. The Walker and Vaughn plaintiffs argue that limits on a parent's right to recover damages for the death of a child after the child would have reached the age of majority are based on the outmoded theory that parents have a right to the earnings of their minor children.

The relevant statute, AS 09.15.010, does not clearly limit the time periods for which the parents of minor children may recover loss of consortium damages. The statute provides that "[a] parent may maintain an action as plaintiff for the ... death of a child below the age of majority." 148 We have not addressed whether these damages may include loss of consortium for periods of time after the child has reached the age of majority.149

The policy behind AS 09.15.010 suggests that parents may not recover such damages. Indisputably, this statute does not allow a parent to recover damages resulting from the loss of a child who died during adulthood. It *1164would be anomalous to allow parents whose children died while minors to recover loss of consortium damages for periods during which those children would have been adults while denying the same recovery to parents whose children died while adults."150 Accordingly, the superior court erred by instructing the jury that it could award the decedents' parents nonpecuniary damages representing losses during the periods after which the decedents would have reached the age of majority.

4. The superior court did not abuse its discretion by instructing the jury that it could award the decedents' parents damages to compensate them for a loss of the decedents' "support" and "service."

The superior court instructed the jury that it could award the parents of Robert Walker and Justin Vaughn a number of types of non-economic damages, including loss of the decedents' "support" and "service." The special verdict forms instructed the jury similarly. However, the verdict forms provided only spaces for the jury to award general non-economic damages; it did not differentiate between categories of non-economic damages. Accordingly, the jury awarded non-economic damages to each parent without specifying the particular non-economic losses for which it intended to compensate the parent.

DelRois claims that the superior court erred by instructing the jury that it could award damages for lost "support" and "service" to the plaintiffs. DelRois argues that Alaska law does not permit juries to award nonpecuniary damages for lost "support" and "service" to parents of deceased children under a "loss of society" theory. DelRois also reiterates its earlier point that the wrongful death statute, AS 09.55.5980, does not permit nondependent plaintiffs to recover any pecuniary damages.

As an initial matter, DelRois's appeal on this issue pertains only to the jury's award to the decedents' parents, not its award to Rhonda. As explained above, the statute does not entitle Rhonda to any award of such damages. Moreover DelRois's appeal on this issue is relevant only to awards under AS 09.15.010 and the wrongful death statute, AS 09.55.580. Accordingly, the award to Rhonda is irrelevant to DelRois's appeal on this issue.

With regard to the remaining challenged awards, DelRois's argument is unpersuasive. As the Walker and Vaughn plaintiffs note, DelRois has waived any particular objection to an award for loss of the decedents' "support" or "service" to the parents by not making an objection on the record. Accordingly, we only review superior court's special verdict form for plain error. 151 Even if Del-Rois had not waived its objection, it is not clear that the inclusion of these two additional types of damages caused DelRois any prejudice.152 The special verdict form allowed the jury to award each personal plaintiff only "Nomn-Economic Loss." As examples of "Non-Economic Loss," the form listed several possible categories of losses, including "emotional distress, sorrow, mental anguish and grief, loss of society, comfort, care, guidance, love, support, service and assistance, companionship and consortium." "Support" and "service" are only two of the fourteen examples of non-economic damages given by the form, and the form does not state that these examples are exhaustive. Furthermore, these are quite general examples; it is not clear how different a loss of "support" is from a loss of "companionship" and "guidance." It is unlikely that the jury's award would have differed had the superior court omitted these two examples of acceptable categories of damages.

Moreover, it would not have been a legal error for the superior court to allow the jury to award pecuniary damages to the parents of the decedents if supported by the *1165evidence. Alaska Statute 09.15.010 creates an independent cause of action for parents to recover losses resulting from the death of their children: "A parent may maintain an action as plaintiff for the injury or death of a child below the age of majority." We have held that the broad language of the statute permits parents of deceased children to recover nonpecuniary damages. 153 Del-Rois reads our prior holding as prohibiting parents from recovering pecuniary damages under AS 09.15.010. However, the broad language of that statute and its original function-to provide parents of deceased children with pecuniary damages-contradicts this argument.

5. The superior court did not abuse its discretion by submitting to the jury the question of whether the decedents suffered before dying.

At trial, the Walker and Vaughn plaintiffs presented Dr. Frane Fallico, a forensic pathologist, who testified that he could not tell whether the boys had suffered any pain after their accident but before their deaths. Dr. Fallico testified that the boys died within seconds or minutes of the accident. However, he stated that he could not tell whether they were unconscious during this period and thus felt no pain, or whether they suffered greatly.

The superior court instructed the jury that it could award the decedents' estates damages as compensation for any pain the decedents suffered before they died. The special verdict form that the superior court gave the jury instructed them similarly. The jury awarded each estate $10,000 for the decedents' pain and suffering and pre-trial loss of enjoyment of life.

On appeal, DelRois claims that the superior court erred by submitting to the jury the question of whether the decedents had suffered before dying. DelRois argues that the only evidence relating to the question of whether the decedents suffered was the testimony of Dr. Fallico, who specifically testified that he could not tell whether they did. DelRois concludes that there was insufficient evidence of the decedents' suffering to submit such a question to the jury.

The Walker and Vaughn plaintiffs answer that Dr. Fallico's testimony was sufficient evidence from which to conclude that the decedents suffered before dying. They also argue that DelRois has waived any challenge to this jury instruction by failing to object to it at trial.

As an initial matter, DelRois has waived this objection by failing to make it at trial. Accordingly, we review the superior court's special verdict form allowing for such damages only for plain error. 154

Trial courts have broad disceretion to submit questions of fact to juries. Courts need only make a threshold determination that a reasonable jury could find for either side. 155 In making such a determina tion, courts should view facts in the light most favorable to the party in favor of submitting the issue to the jury. 156 We review such a determination only for abuse of discretion. 157 As we have previously explained, the combination of these two standards makes it difficult for a litigant to successfully challenge a trial court's decision to submit a question to the jury: "The deferential standard of review and the substantive standard combine to give the [appellant] a difficult task in convincing us that the superior court abused its discretion." 158 The application of the plain error standard of review here compounds the challenge for DelRois on appeal.

Given this combination of standards, we conclude that the superior court acted within *1166its permissible range of discretion when it allowed the jury to determine whether the decedents had suffered before dying. Dr. Fallico's testimony evidences at least a reasonable possibility that the decedents suffered before dying. Further, the jury had an opportunity to review the evidence concerning the nature of the decedents' injuries. Based on this evidence, the jury could apply its collective knowledge and experience to the question of momentary suffering.

However, despite our determination that this instruction was not erroneous, the award of damages for pre-death pain cannot be sustained. As we have already stated, the $10,000 awards of past non-economic losses to the Estates of Robert Walker and Justin Vaughn must be vacated because they include loss of enjoyment of life damages. 159

6. DelRois's challenge to the NIED instructions is unavailing.

The superior court allowed the jury to award Robert Walker's parents, William and Donna, and sister, Rhonda, 160 and Justin Vaughn's father, Donald, emotional damages that they had incurred after viewing the scene of the accident, under an NIED claim. 161 The superior court instructed the jury that it could award the Walkers and Donald Vaughn damages for the emotional distress they experienced as a direct result of witnessing the scene of the accident. The special verdict form also provided a place for the jury to award the Walkers and Donald Vaughn such non-economic loss, although it did not distinguish between those suffered as a result of witnessing the accident seene and damages suffered as a result of losing a family member. The jury awarded each of these plaintiffs damages for their non-economic losses.

DelRois claims that the jury instructions and special verdict form were legally inadequate instructions on the requirements for an NIED claim. Specifically, DelRois argues that the court failed to instruct the jury that emotional damages, such as mental suffering and psychological injuries, must be severe to be recovered through an NIED claim.

As an initial matter, DelRois has waived this objection by not making it at trial. In any case, the superior court instructed the jury that it could only compensate the plaintiffs for severe or serious emotional damages incurred by witnessing the accident seene. In jury instructions 28 and 29, the superior court instructed the jury that it could award "damages for emotional distress that they have suffered or will suffer as a result of witnessing the scene of the accident." Then, in jury instruction 30, the superior court instructed the jury as follows:

The term "emotional distress" means emotional distress which is severe or serious. Severe or serious emotional distress may be found where a reasonable person, normally constituted, would be unable to adequately cope with the distress caused by the circumstances of the case. Examples of serious emotional distress may include neuroses, psychoses, chronic depression, phobia, post traumatic stress disorder, and shock. However, temporary fright, disappointment, and regret do not suffice as severe or serious emotional distress.

This instruction repeats nearly verbatim language in Chigmar v. Mackie' 162 discussing the requirement that emotional damages must be severe to be recoverable in an NIED bystander claim. 163 As such, the instructions are legally adequate.

*11677. The superior court did not commit plain error in its instructions regarding the present value of awards for future economic damages.

Jury instruction 25 allowed the jury to award each estate future economic damages "in sums of present value." The special verdict form similarly allowed the jury to award such damages, but did not indicate that the damages were to be reduced to present value. The jury awarded the Estate of Robert Walker $300,000 and the Estate of Justin Vaughn $400,000 to compensate for the decedents' lost future earnings. DelRois claims that the superior court erred by failing to instruct the jury to reduce any amount it awarded to present value. DelRois notes that AS 09.17.040(b) requires a fact finder to "reduce future economic damages to present value" absent an agreement by the parties to apply the rule adopted in Bequliew v. El-liott. 164

DelRois did not make this objection at trial and therefore the instruction will be reviewed only for plain error. We note that jury instruction 25 indicated that the jury should reduce economic damages to present value ("economic loss ... is to be found in sums of present value"). We therefore construe DelRois's argument to be that the court inadequately instructed the jury "about inflation and reducing the award to present value with respect to future damages," not that it gave no instruction on present value. We are unable to conclude that the instruction was so inadequate as to amount to plain error. The instruction conveyed the idea that economic damages were to be calculated in terms of present value. If DelRois wanted an instruction detailing a method for calculating present value, it should have requested one.

V. CONCLUSION

For the reasons stated:

(1) The judgment dismissing the claims against the State of Alaska is affirmed.

(2) The judgment against DelRois in favor of the Walker and Vaughn plaintiffs is vacated. On remand it should be modified to reflect DelRois's thirty-five percent fault for the accident.

(8) In addition:

(a) As to the Estate of Robert Walker, on remand the court should modify the judgment by deleting from the verdict both awards of $10,000 that include a component for loss of enjoyment of life.

(b) As to the Estate of Justin Vaughn, on remand the court should modify the judgment by deleting from the verdict both awards of $10,000 that include a component for loss of enjoyment of life.

(c) As to Rhonda Walker, the judgment is vacated.

(d) As to William and Donna Walker, on remand the court should modify their judgments by deleting the post-majority awards of non-economic damages of $100,000 in each judgment.

(e) As to Donald and Donna Vaughn, on remand the court should modify their judgments by deleting the post-majority awards of non-economic damages of $100,000 in each judgment.

(4) The awards of interest and attorney's fees are vacated. On remand the court should modify these awards as required by the changes to the judgment amounts mandated by this opinion and by the result of the partial new trial. 165

(5) On remand under proper jury instructions:

*1168(a) The Estates are entitled to a new trial on their claims for pre-death pain and suffering under AS 09.55.570; and

(b) Rhonda Walker is entitled to a new trial on her claim for negligent infliction of emotional distress.

AFFIRMED IN PART, VACATED IN PART, and REMANDED for further proceedings.

FABE, Chief Justice, with whom CARPENETI, Justice, joins, dissenting.