text:
    2003 WY 23
    Franklin Ross PAGE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-230.
    Supreme Court of Wyoming.
    Feb. 25, 2003.

      Representing Appellant: Kenneth M. Ko-ski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel.
    Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Ericka S. Cook, Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶ 1] A jury convicted the appellant, Franklin Ross Page (Page), of felony possession of marijuana, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(A) (LexisNexis 2001). Page was sentenced to the custody of the Department of Corrections for a period of fifteen to thirty months. Page contends in this appeal that his trial counsel was ineffective in failing to move to suppress evidence obtained during a search of Page’s residence. Page argues that such a motion would have been granted because the affidavit submitted in support of the warrant did not establish probable cause to search.

[¶ 2] We reverse.

ISSUES

[¶ 3] The issues presented in this ease are:

1. Whether defense counsel rendered ineffective assistance of counsel in failing to move to suppress evidence seized during a search of Page’s residence?

2. Whether the judicial officer who issued the search warrant erred as a matter of law because the affidavit presented in support of the warrant did not establish probable cause to search?

FACTS

[¶ 4] In early 2001, Page was living at a residence in Gillette with his girlfriend and his girlfriend’s daughter. On March 6, 2001, a Campbell County Sheriffs deputy went to the residence to perform a welfare check on the child. His purpose was to ascertain the living conditions in the residence. Upon the deputy’s arrival, the child’s mother allowed him to enter the residence. Page was present. The deputy inspected the residence and made arrangements for the girl to reside with relatives until conditions in the residence could be improved.

[¶ 5] During the course of the inspection, the deputy noticed a pipe fitting with a duct-taped handle in the entry room. He picked it up, noticed burnt residue on the end, and asked what it was. Page replied that he used it to smoke tobacco. The deputy then asked Page if there were other similar pipes in the residence. Page produced another pipe, which he again said was used to smoke tobacco. Upon the deputy’s assertion that the pipes did not smell like tobacco, Page admitted that he had smoked marijuana from the second pipe. The deputy then called another deputy to secure the premises while he obtained a search warrant.

[¶ 6] A circuit court judge issued a warrant to search Page’s residence, based on the deputy’s four-page affidavit. During the ensuing search, numerous items identified as drug paraphernalia, plus about .11 grams of marijuana, were seized. After his arrest, and after being advised of his “Miranda rights,” Page admitted that the marijuana was his. The pipes seized before the warrant was obtained, the items seized after the warrant was obtained, and Page’s admission that the marijuana was his were the State’s primary evidence against Page at trial.

The Aepidavit

[¶ 7] In four separately numbered paragraphs, the deputy’s affidavit set forth the following information:

• The affidavit was being submitted with personal knowledge, based upon information and belief.
• The affiant was a fourteen-year veteran of the Sheriffs Office and a certified peace officer.
• The affiant had received training in controlled substance investigation and had instructed classes at the Wyoming Law Enforcement Academy on drug identification.
• The affiant believed that the following evidence of a crime was being concealed at Page’s residence: “controlled sub-stanee(s), including but not limited to mari[j]uana, scales, U.S. currency, pipes, packaging materials, telephone tolls, ledgers, writings, cutting agents, rolling papers, other drug related paraphernalia, address books, storage unit records, and other items used in the furtherance of narcotics trafficking.”
• The affiant had, on the same date, conducted a welfare check at the residence, during which he had learned the following information:
• Page, his girlfriend, and the girlfriend’s daughter lived there.
• The three had been evicted from Squaw Valley Apartments and were in the process of fixing up the residence so they could live there.
• There was a wood-burning stove in the den, with blistered paint on the wall behind it and melted plastic hanging from the ceiling.
• Page admitted they were using extension cords to borrow electricity from the neighbors, there was no running water, the child bathed at the neighbor’s house, the toilet is flushed by pouring water through it, and the pipes were frozen.
• As he was leaving the residence after the welfare check, the affiant had observed a pipe fitting with a duct-taped handle with burnt residue in the end protruding from the inner core of a toilet paper roll. In answer to the affiant’s questions, Page allowed the affiant to look at the pipe, indicated that he used it to smoke tobacco, and produced another similar pipe with burnt residue.
• Another deputy and his “K-9 companion” then responded to the deputy’s request for back-up assistance. Page refused the second deputy’s request for permission to search the residence. That deputy then secured the residence while the affiant sought a search warrant.
• The affiant knows the following from his experience and training, and from information shared by other agents:
• During the course of most searches for controlled substances pursuant to a search warrant, items of identification such as driver’s licenses, and documents such as phone bills, rent receipts, checks, canceled mail envelopes, utility bills, ledgers, and personal written diaries and electronic digital diaries are often discovered, and which items are later useful in identifying the persons responsible for a crime and are used as evidence to prosecute those persons.
• While executing search warrants for controlled substances, it is common to find persons on the premises and that those persons often are found to have controlled substances and/or evidence of controlled substance violations on their persons due to their association either as customers or other dealers, which is why they are found at the premises of someone who is dealing in controlled substances/narcotics.
• The affiant has seen the following from his years in law enforcement:
• Persons involved in controlled substance(s) use and/or sales generally have also been associated with other controlled substances such as marijuana and/or persons who use other controlled substances such as marijuana.
• Persons who use marijuana or have association with persons who are using marijuana generally have devices used to ingest the marijuana, including pipes, rolling papers, bongs and other devices.
• The affiant believes the following evidence of crime is being concealed at the Page residence: “controlled substance(s), including but not limited to mari[j]uana, scales, U.S. currency, pipes, packaging materials, telephone tolls, ledgers, writings, cutting agents, rolling papers, other drug related paraphernalia, address books, storage unit records, and other items used in the furtherance of narcotics trafficking.”

STANDARD OF REVIEW

[¶ 8] We have recently repeated our well-established standard for reviewing claims of ineffective assistance of counsel:

“ ‘When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel’s acts or omissions were outside the wide range of professionally competent assistance. Herdt v. State, 891 P.2d 793, 796 (Wyo.1995); Starr v. State, 888 P.2d 1262, 1266-67 (Wyo.1995); Amer v. State, 872 P.2d 100,104 (Wyo.1994); Frias v. State, 722 P.2d 135, 145 (Wyo.1986). The reviewing court should indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Herdt, at 796; Starr, at 1266; Amer, at 104; Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).
Under the two-prong standard articulated in Strickland and Frias, an appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel’s performance was deficient and that prejudice resulted. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Starr, at 1266; King v. State, 810 P.2d 119, 125 (Wyo.1991) (Cardine, J., dissenting); Campbell v. State, 728 P.2d 628, 629 (Wyo.1986); Frias, 722 P.2d at 145. In other words, to warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to “render such assistance as would have been offered by a reasonably competent attorney” and that “counsel’s deficiency prejudiced the defense of [the] case.” Lower v. State, 786 P.2d 346, 349 (Wyo.1990). “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning .of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.’
Chapman v. State, 2001 WY 25, ¶ 6, 18 P.3d 1164, 1168-69 (Wyo.2001) (quoting Grainey v. State, 997 P.2d 1035, 1038-39 (Wyo.2000)).”

Becker v. State, 2002 WY 126, ¶ 12, 53 P.3d 94, 98-99 (Wyo.2002) (quoting Reyna v. State, 2001 WY 105, ¶ 19, 33 P.3d 1129,1134-35 (Wyo.2001)). An appellant bears the burden of proving that counsel was ineffective. Barkell v. State, 2002 WY 153, ¶ 10, 55 P.3d 1239,1242 (Wyo.2002). Specifically, with reference to the allegations of this case, the failure to file a suppression motion does not constitute ineffective assistance of counsel per se. Lancaster v. State, 2002 WY 45, ¶ 58, 43 P.3d 80, 102 (Wyo.2002). Prejudice to a defendant can only be shown where, had the motion been made, it would have been granted, and had the evidence been suppressed, “ ‘only a limited amount of evidence was available to the prosecution to support a conviction.’ ” Id. at ¶ 59, 43 P.3d at 102 (quoting Dickeson v. State, 843 P.2d 606, 612 (Wyo.1992)).

[¶ 9] Our recent jurisprudence reveals the development of a “separate state constitutional analysis” of search and seizure issues, emphasizing Wyo. Const, art. 1, § 4, which reads as follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.

See Hixson v. State, 2001 WY 99, 33 P.3d 154 (Wyo.2001); Cordova v. State, 2001 WY 96, 33 P.3d 142 (Wyo.2001); and Vasquez v. State, 990 P.2d 476 (Wyo.1999). Our review of the sufficiency of an affidavit supporting the issuance of a search warrant is de novo. Hixson, 2001 WY 99, ¶ 7, 33 P.3d at 157. In applying a “totality of the circumstances” test, we give deference to the probable cause determination of the judge issuing the warrant, and the appellant has the burden of proving, by a preponderance of the evidence, that his rights were violated. Id. The test is as follows:

“In order to issue a search warrant, the judge or magistrate must have a ‘substantial basis’ for concluding that probable cause exists. * ⅜ * The judge or magistrate must be supplied with sufficient information to support his independent judgment that probable cause exists. * * ⅜ The affidavit ‘must include facts sufficient to warrant a reasonably prudent and cautious man to believe that a crime has been committed and that there is evidence of the crime at the place to be searched.’ * * * While mere suspicion is not enough, certainty is not required. * ⅜ ⅝
There is a presumption of validity with respect to the affidavit supporting a search warrant. ⅜ * * Furthermore, the affidavit is to be tested by much less vigorous standards than those governing the admissibility of evidence at trial. * * * The issuing judge’s determination should be paid great deference upon appeal. ⅜ * * Because of the preference for warrants, and the desire to encourage law enforcement personnel to seek warrants, any doubt should be resolved by sustaining the search.”

Id. at ¶ 6, 33 P.3d at 156-57. Because the Wyoming Constitution, unlike the Fourth Amendment, requires an affidavit, rather than just an oath or affirmation, we have held that sufficient factual support for issuance of the warrant must be found within the affidavit, itself, and may not be provided by additional testimony at the time the warrant is issued. Hixson, 2001 WY 99, ¶ 7, 33 P.3d at 157; Cordova, 2001 WY 96, ¶ 13, 33 P.3d at 148.

DISCUSSION

[¶ 10] The deficiencies in the affidavit that was used to obtain the search warrant in this case are patent. To begin with, the affidavit states that the affiant’s “personal knowledge” is based upon “information and belief,” the latter standard having long been found wanting in this state. Cordova, 2001 WY 96, ¶ 16, 33 P.3d at 149; State v. Peterson, 27 Wyo. 185, 194 P. 342, 348 (1920). Next, while the affiant’s training and experience are factors to be considered, especially in the context of a warrantless arrest or a warrantless search, they have less validity in determining the existence of probable cause for the issuance of a search warrant. Cordova, 2001 WY 96, ¶ 16, 33 P.3d at 149. That is because the judge is the one charged with making the ultimate determination; he may not simply rely on the claimed expertise of law enforcement officials. Id.

[¶ 11] There. is nothing factual within the affidavit to support the paragraphs detailing what the affiant “believes” and “knows” about what he is likely to find if the search is authorized. Indeed, these paragraphs appear to be “boilerplate” taken from a form intended for use when a search of a known drug dealer’s premises is contemplated. Similarly, the paragraphs setting forth the results of the welfare inspection, and noting the presence of the second deputy and his dog, present no facts from which a detached judge could infer the presence of controlled substances or any other evidence of a crime. In particular, a refusal to consent to a search may not form any part of the basis for probable cause to search. United States v. Skidmore, 894 F.2d 925, 927 (7th Cir.1990); State v. Washington, 623 So.2d 392, 397 (Ala.Cr.App.1993). See also United States v. Manuel, 992 F.2d 272, 274 (10th Cir.1993); State v. Moreno, 619 So.2d 62, 66 (La.1993); and Garcia v. State, 103 N.M. 713, 712 P.2d 1375,1376 (1986).

[¶ 12] The only relevant facts contained in the affidavit in the present case are those set out in the paragraph describing the two pipe fittings with duct-taped handles and burnt residue. And there is no indication in the affidavit that the pipes were used to ingest marijuana or any other controlled substance. Page claimed he used them to smoke tobacco. The affiant makes no claim to the contrary, either based on his observations or his training and experience. It is certainly “too much of a leap” to allow the issuing judge to speculate that the affiant must have thought the pipes were used to ingest controlled substances.

[¶ 13] In the hierarchy of protection against unreasonable searches and seizures, the location deserving the highest level of protection is the personal residence. In this area of the law, a man’s home truly is his castle. Peterson, 194 P. at 345. A citizen’s expectation of privacy, which is the starting point for analyzing the question of the reasonableness of a search or seizure, is certainly at its highest level in his home. For that reason, it is imperative in cases of residential searches that we keep in mind the limitations upon the deference we are to afford to the findings of the judge issuing a search warrant.

This deference places the burden of establishing a constitutional violation by a preponderance of the evidence on parties claiming that their rights were violated. However, it is
“not to be employed to blindly sustain the actions of the magistrate or to place any reviewing court in a position that it may refuse to examine the factual basis for such issuance. To refuse or to fail to do so could result in serious erosion of one of our most valuable constitutional rights, and unless there is factual basis for determination of probable cause this court would be evading its responsibility by failing to declare this to be the case.”

Cordova, 2002 WY 96, ¶ 11, 33 P.3d at 148 (quoting Smith v. State, 557 P.2d 130, 133 (Wyo.1976)).

[¶ 14] When the search warrant was issued in this case, the issuing judge knew only that the affiant had located in the residence two duct-taped pipe fittings with burnt residue that the owner claimed were used to smoke tobacco. Under an objective test, that is simply too little information to justify the sweeping assertions made by the affiant and relied upon by the judge in issuing the warrant. In his affidavit, the affiant does not even claim that the pipes did not smell like they had been used to smoke tobacco, or that they smelled like they had been used to smoke marijuana, or that they resembled other homemade instruments used to smoke marijuana. The gap from fact to inference was simply too great for the warrant to have been issued in this case.

[¶ 15] We must assume that, had this issue been raised in the district court by defense counsel, the district court judge would have applied the same law and would have reached the same conclusion that we have reached. A motion to suppress the evidence obtained as a result of the search, including Page’s later admission, would have been granted, leaving the State with no evidence with which to prosecute Page. Given the fact that the State’s entire case rested on this evidence, no reasonable attorney would have foregone the opportunity to test the search warrant via a motion to suppress. Page was clearly prejudiced by counsel’s failure in that regard. Page received ineffective assistance of counsel.

GOOD FAITH EXCEPTION

[¶ 16] Near the end of its brief, the State opines that “[e]ven if the affidavit were deemed deficient, the search of Appellant’s house and the seizure of the evidence in question can be sustained under the ‘good faith’ rule set out in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).” The State then goes on to describe how in United States v. Leon, 468 U.S. 897, 920, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court fashioned a good faith exception to the exclusionary rule whereby, if an officer relies in good faith upon a search warrant, the fruits of the search will not be suppressed just because the warrant is later determined to have been invalid. While we acknowledge the existence of this exception under the Fourth Amendment, we have never been called upon to determine whether the same exception should be recognized under Wyo. Const, art 1, § 4. The instant case is not the proper one in which to take up this task. Neither side has presented the issue as part of a separate state constitutional analysis and we are not inclined to pursue the issue absent such input.

CONCLUSION

[¶ 17] Defense counsel was ineffective in failing to move to suppress the evidence obtained in the search of Page’s home pursuant to the warrant. Page was prejudiced by introduction at his trial of the evidence that would have been suppressed had such a motion been made. Without such evidence, it is probable that the trial would have had a different outcome. Indeed, without the illegally obtained evidence, it is highly likely that there would have been no trial, since the State had no other evidence.

[¶ 18] Resolution of this case in this manner obviates the need separately to answer the second issue posed by Page.

[¶ 19] Reversed.

      . The Fourth Amendment to the United States Constitution reads as follows:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath, or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      . The affidavit may, however, be formally supplemented under W.R.Cr.P. 41(c). See Hixson, 2001 WY 99, ¶ 7 n. 4, 33 P.3d at 157 n. 4.

      . We use the word "judge” as a general term to include all judicial officers.

      . The lack of care in construction of the affidavit is evidenced by the fact that ten lines of such boilerplate are repeated in two separate paragraphs.

      . Inexplicably, Page’s alleged admission that he used the second pipe to smoke marijuana was not mentioned in the affidavit.


source: Caselaw Access Project

author: VOIGT, Justice.

license: Public Domain

text:
    2003 WY 26
    Marjorie Louise HAWORTH, individually, and Albert Raymond Copp, Jr., individually, Appellants (Plaintiffs), v. Randy L. ROYAL, Individually and as Trustee of the Bankruptcy Estate of Marjorie Louise Haworth; Anthony T. Wendtland, individually and as attorney for Randy L. Royal; Betty Alden, individually and as agent for Era Carroll Realty Co., Inc.; Sheridan County Title Insurance Company; Keith E. Weerts and Kim L. Weerts, individually and as Husband and Wife; James A King dba King Locksmith and Electronics, Inc.; Dick Kuzara dba Mac’s Moving and Secured Storage, Appellees (Defendants).
    No. 02-145.
    Supreme Court of Wyoming.
    Feb. 27, 2003.
    Rehearing Denied March 27, 2003.
    Representing Appellants: Marjorie Louise Haworth, pro se; and Albert Raymond Copp, Jr., pro se.
    Representing Appellees: Anthony T. Wendtland of Davis & Cannon, Sheridan, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶ 1] This is an appeal from the district court’s grant of the appellees’ motion for summary judgment and denial of the appellants’ motion for summary judgment. We summarily affirm the district court because the appellants have failed to provide cogent argument or citation to pertinent authority.

ISSUES

[¶ 2] The appellants present no clear statement of the issues. Instead, they present a rambling four-page diatribe in which they haphazardly mention jurisdiction, procedural rules, statutory authority, conspiracy, due process, equal protection, fraud, real party in interest, and open courts. In their brief, the appellees correctly point this Court to the appropriate issue of whether summary judgment was proper. The appellees also seek costs and attorney’s fees under W.R.A.P. 10.05.

DISCUSSION

[¶ 3] Appellant Haworth took bankruptcy. Appellant Copp apparently was in possession of and claimed an interest in certain property of the bankruptcy estate. Appellee Royal is the bankruptcy trustee and Appellee Wendtland is his attorney. The remaining appellees are third parties drawn into the controversy as a result of the trustee’s efforts to gain possession of and sell estate assets.

[¶ 4] The appellants filed a lawsuit against the appellees, vaguely alleging fraud, civil conspiracy, and abuse of process. Summary judgment was granted to the appellees and against the appellants. This appeal followed. Unfortunately, the appellants present no cogent argument or pertinent legal authority, so we summarily affirm. VJL v. RED, 2002 WY 25, ¶¶ 20-22, 39 P.3d 1110, 1114 (Wyo.2002). Pro se litigants are not excused from the requirements of this rule. In re KD, 2001 WY 61, ¶¶ 7-9, 26 P.3d 1035, 1036-37 (Wyo.2001); Rogers v. Rogers, 973 P.2d 1118,1120 (Wyo.1999).

[¶ 5] Pursuant to W.R.A.P. 10.05, we certify that there was no reasonable cause for this appeal. We can discern no good faith legal basis for the appeal, and we grant the appellees’ request for sanctions. Gray v. Stratton Real Estate, 2001 WY 125, ¶¶ 11-13, 36 P.3d 1127, 1129-30 (Wyo.2001). The ap-pellees should submit a statement of costs and attorney’s fees associated with this appeal.

[¶ 6] Affirmed.


author: EASTAUGH, Justice.

text:
    KODIAK ISLAND BOROUGH, Appellant/Cross-Appellee, v. Joan ROE, on behalf of her ward, Appellee/Cross-Appellant.
    Nos. S-10058, S-10137.
    Supreme Court of Alaska.
    Feb. 7, 2003.

      James D. Gilmore and Kristina Sue Mason, Gilmore & Doherty, Anchorage, for Appel-lani/Cross-Appellee.
    Kirsten Tinglum, Donna J. McCready, and William S. Cummings, Ashburn & Mason, P.C., for Appellee/Cross-Appellant.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

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 Simeonoffs 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 Simeo-noff 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 Tort-feasors.

The borough argues that it was error to prevent the jury from apportioning fault between intentional and negligent tort-feasors. The question whether fault could be allocated and damages apportioned between negligent and intentional tortfeasors turns on the interpretation of former AS 09.17.080 (1989) and former AS 09.17.900 (1986) and the common law of torts as it existed in Alaska in 1991, when these torts were committed. We discern no error.

Roe filed a motion to establish the law of the case, arguing that the borough had a special protective relationship with C.E., and that it negligently failed to prevent a foreseeable harm which it had a duty to prevent. Roe further argued that under Alaska Statutes then in effect, and under the Restatement (Second) of Tokts § 315, the borough should not be able to “escape” liability by shifting liability to an intentional third party tortfeasor.

The superior court granted Roe’s motion. It considered AS 09.17.080 and .900 and the history of tort reform in Alaska, and determined that while not currently the law in Alaska, apportionment between negligent and intentional tortfeasors was not permitted prior to 1997, when the legislature specifically redefined “fault” for purposes of the apportionment statute to provide for such allocations. The superior court relied on policy arguments against apportionment discussed by the Tennessee Supreme Court in Turner v. Jordan, and on our decision in Borg-Wanier Corp. v. Avco Corp., in which we stated that section .900 clearly contemplated apportionment between all unintentional tort-feasors.

On appeal the borough advances statutory and policy arguments, and points to the history of joint liability in Alaska to support its claim that the trial court erred by preventing the jury from apportioning damages between the borough and the two intentional tortfea-sors, Simeonoff and McNair. The borough agrees with the trial court that whether allocation was appropriate turns on the interpretation of AS 09.17.080 and .900, but reads the history of joint liability in Alaska and voter intent to favor apportionment.

In characterizing Alaska’s experience with tort reform, the borough observes that at common law, and in Alaska before 1970, joint tortfeasors were jointly and severally liable and did not have a right of contribution against each other. The legislature granted joint tortfeasors the right of contribution in 1970 by enacting the Alaska Uniform Contribution Among Tortfeasors Act. That act explicitly precluded intentional tortfeasors from seeking contribution. Tort reform legislation in 1986 amended the contribution act, and required that the liability of joint tortfeasors be determined by each tortfea-sor’s percentage of fault. In that year the legislature also enacted AS 09.17.900, which defined “fault” to include negligent or reckless acts or omissions, but which did not mention intentional acts. In 1988 Alaska voters passed Ballot Measure No. 2, thereby replacing joint and several liability with pure several liability. But Ballot Measure No. 2 did not modify the definition of “fault” contained in section .900. In 1997 the legislature amended the definition of “fault” in section .900 to explicitly include intentional acts.

The borough argues that the 1997 amendment which added a specific reference to “intentional” acts in section .900’s definition of fault was a clarification of existing law, and that the definition encompassed intentional acts even before the amendment. The borough suggests that section .900 has al-

ways been inclusory, even though it did not contain the word “intentional” until 1997, and that the passage of Ballot Measure No. 2 in 1988 demonstrated that the voters clearly intended to hold each tortfeasor responsible for only that tortfeasor’s percentage of fault, regardless of whether the tortfeasor’s act was negligent, reckless, or intentional. It argues that assigning an intentional tortfea-sor’s liability to a negligent actor would defeat voter intentions. It also asserts that allowing the allocation it sought would not have reduced the incentive to engage in non-negligent conduct, because, it reasons, the prospect of being held liable for their own negligence would encourage actors to use reasonable care to prevent their employees from committing intentional torts.

Roe responds by referring to the “plain meaning” of the statute and discussing established principles of statutory interpretation. She argues that because the definition in section .900 before 1997 did not explicitly include intentional conduct, the liability allocation excluded intentional conduct. She relies on our holding in Borg-Wamer, observes that Ballot Measure No. 2 did not change section .900, and argues that until 1997, only unintentional tortfeasors were parties at “fault” for allocation purposes. She also concludes that Ballot Measure No. 2 only changed how damages would be allocated— from joint and several liability to pure several liability — not between whom they would be allocated.

Roe also contends that the borough had a duty to prevent foreseeable harm to C.E. under agency principles and nondelegable duty theory; the borough responds that these arguments were unsupported, dropped in Roe’s abandoned cross-appeal, and waived because she failed to raise them below. We do not need to consider whether Roe preserved these arguments, because the issue presented here turns on the language of the statutes, the history of tort reform, and the state of the common law as of 1991, when Roe’s cause of action arose.

We think Roe and the trial court correctly interpreted the apportionment statutes as they read before the legislature enacted the 1997 amendment. Before 1997 the statutes were silent on the issue of apportioning intentional conduct, and even though the Governor’s Advisory Task Force on Civil Justice Reform labeled its proposed redefinition of section .900 a “clarification,” we think the amendment altered the status quo. Because the apportionment statutes did not apply to intentional conduct before 1997, the common law governs this dispute.

The common law as it existed in many jurisdictions, and as it existed in Alaska before 1997, is accurately described by the Restatement (Third) of TORTS: AppoRtionment of Liability § 14, which states:

A person who is liable to another based on a failure to protect the other from the specific risk of an intentional tort is jointly and severally liable for the share of comparative responsibility assigned to the intentional tortfeasor in addition to the share of comparative responsibility assigned to the person.

Although this Restatement section was published in 2000, it accurately describes the status of the common law on this topic as it stood for years before publication. It also specifically addresses the topic of allocating fault between negligent tortfeasors and intentional tortfeasors when the negligent act consists of failing to protect against a specific risk of an intentional tort in jurisdictions, like Alaska, that recognized principles of comparative responsibility. The Restatement section accurately portrays the common law as it was in Alaska before 1997, when the legislature amended section .900 and changed the law.

The borough failed here to protect C.E. from the foreseeable risk that Simeonoff and McNair would sexually abuse her. Both parties’ experts agreed that the duty to protect the residents of this program lay with the caretaker. The residential program directors knew that staff abuse of developmentally disabled residential clients was a risk. They knew of Simeonoffs and McNair’s backgrounds and yet gave them unobstructed access, through their jobs, to particularly vulnerable potential victims. The borough can be held responsible for the consequences of the intentional torts of its employees in this case because the jury found that it negligently failed to protect C.E. from the specific risk of Simeonoffs and McNair’s intentional torts.

We recognize that the 1997 amendment displaced the common law and that section .900 may now permit an apportionment that is contrary to Restatement (ThiRd) of ToRTS: Apportionment of Liability § 14. But before 1997 the common law on this issue governed. The trial court accordingly did not err in refusing to permit the jury to apportion fault between the borough and the intentional tortfeasors.

B. The Trial Court Properly Instructed the Jury as to Intentional Conduct Without Issuing an Instruction on Negligence or Recklessness.

By the time her case went to the jury, Roe had dropped her negligence and recklessness claims against Simeonoff and McNair, and was alleging only intentional torts as to them. Nevertheless, the borough proposed a special verdict form question that would have asked the jury whether either Simeonoff or McNair was negligent or reckless. The borough argued that AS 09.17.080 required trial courts in actions involving multiple tortfeasors to instruct the jury on negligence and recklessness. The trial court rejected the borough’s proposals and did not instruct the jury to consider whether Simeo-noff or McNair had been negligent or reckless. The borough argues on appeal that this denied it the opportunity to have the jury allocate fault to Simeonoff and McNair.

We review jury instructions and special verdict forms de novo. We will reverse for instructional error only if a party suffered prejudice. We review de novo whether a party suffered prejudice.

We agree with Roe that the issue was immaterial. Had the jury found Simeonoff or McNair liable for anything less than an intentional touching, they would not have been liable for assault, the only tort claim against them Roe took to the jury. There was no reason for the jury to consider claims Roe was no longer pursuing. The borough was not prejudiced by the trial court’s ruling on this issue because there would have been no fault to allocate and damages to apportion had the jury not found that Simeonoff and McNair acted with intent.

C. The Trial Court Properly Ruled that Each Incident of Sexual Contact Permitted a Separate Claim for Emotional Distress.

Roe moved before trial for a declaration of law that each sexual assault against C.E. was a separate incident for purposes of the AS 09.17.010 damages cap. The borough opposed the motion, arguing that it was premature because the record did not suffi-eiently establish how many incidents there had been, and because Roe did not plead a separate tort claim for each alleged assault. The trial court ruled that the legislature intended to allow damage awards for multiple incidents of assault, and interpreted the statute to allow an award for each sexual assault. The court instructed the jury that it could assess damages for each instance of Simeonoff s or McNair’s sexual contact.

The borough now argues that the court’s legal ruling and the corresponding jury instruction based on that ruling were erroneous. It argues that the instruction was erroneous because it was predicated on claims that Roe had abandoned before the case went to the jury. The borough asserts that the word “claim” in the statute should be understood to mean the “legal basis for recovery,” and that damages should have been limited to the “claim” against the borough that went to the jury — that the borough negligently hired, retained, promoted, or supervised Simeonoff and McNair.

Roe asserts that this court should affirm the trial court’s ruling and jury instruction because the plain language of the statute applied the cap to each incident of assault.

We agree that each event was a separate incident for purposes of calculating damages. We agree with the trial court that the plain language of the statute is clear. The statute limited damages awards “for each claim based on a separate incident or injury.” Absent any legislative history to the contrary, the plain language of the statute compels us to conclude that the legislature intended to allow multiple claims of injury based on multiple incidents. The jury found four incidents of assault and permissibly decided that each separate incident caused a separate injury. The trial court did not err in allowing the jury to consider whether to award damages for each assault.

D. Instructing the Jury on the Non-economic Damages Cap Was Harmless Error.

The trial court instructed the jury that, under AS 09.17.010, it could not award more than $500,000 in non-economic damages for each instance in which Simeonoff or McNair “intentionally touched [C.E.] in a harmful or disagreeable way.” The court reasoned that “it’s the jury that does the awarding” of damages and that it would be deceptive not to tell the jury of the limit on the amount the plaintiff could be awarded.

The borough challenges the instruction on statutory grounds and also claims that the erroneous instruction rendered the cap unconstitutional. First, it argues that although the statute in effect when this cause of action accrued was silent on whether trial courts should instruct on the cap, the statutory term “awarded” indicated that the cap should have been applied after the jury reached its verdict, not by the jury during deliberations. Second, the borough asserts that the instruction denied it the right to a jury trial by removing the issue of damages from the fact-finder. The borough claims that it was prejudiced because revealing the cap to the jury produced an “anchoring” effect which limited the jury’s ability to independently assess C.E.’s damages.

Roe responds that the instruction was not explicitly prohibited, that the jury did decide the issue of damages, and that the instruction did not prejudice the borough. She points out that the award was ultimately lower than the amount C.E. requested and which the cap allowed.

We agree with the borough that it was error to instruct on the damages cap. The legislature may limit the amount of damages that can be awarded, but it is for the jury to determine the extent of the plaintiffs injury and the damage award that will make her whole. Instructing the jury on the cap interferes with these responsibilities. We recently ruled in Central Bering Sea Fishermen’s Association v. Anderson that instructing a jury on punitive damages caps “carried a substantial risk of suggesting the range of appropriate punitive awards.” That observation also applies to caps relating to compensatory damages.

Nevertheless, we conclude here as we did in Central Bering Sea that the error does not warrant reversal. First, as in Central Beñng Sea, the trial court’s ruling was a matter of first impression and there was no clear guidance available on the issue. The jury’s verdict in this case preceded publication of Central Bering Sea by nearly two years. Second, Roe did not exploit the error by arguing that the cap should guide the jury in considering appropriate awards. Third, the jury permissibly found four separate incidents of assault, which meant that more than one cap applied. And fourth, the jury’s non-economic award of $1,000,000 was half the total amount allowable under the caps. This makes it unlikely that the erroneous cap instruction affected the damage award.

E. The Trial Court Did Not Err in Permitting a Special Damage Award for the Extraordinary Costs of Raising M.E.

Roe moved before trial to establish the law of the case to allow her to argue for special damages in conjunction with raising M.E., the child of C.E. The superior court allowed Roe to argue for these extraordinary expenses, and the jury found $350,000 in economic damages.

The borough argues on appeal that the trial court erred in allowing these special damages because the “extraordinary” costs a developmental^/ disabled woman would incur in raising a healthy child were not the product of the borough’s negligence. The borough argues that C.E.’s parental economic responsibilities were caused by deliberate choices made by C.E., Roe, and C.E.’s former guardian — not by the borough’s negligence. It asserts that it should not have to pay child-rearing expenses beyond conventional tort damages, which it argues should be tailored to compensate the tort victim for injuries resulting from the tortious conduct. The borough argues that this situation is governed by Poor v. Moore and M.A. v. United States, which explicitly precluded recovery of damages for child-raising expenses. It further argues that the borough’s taxpayers should not have to bear the costs which parents must bear. The borough contends that to hold otherwise would inspire other parents to file suit to recover for the extraordinary expenses that everyone encounters while raising a child.

Roe responds that she was not claiming the everyday support damages prohibited in Poor and M.A., but rather the segregated costs C.E. uniquely will encounter as a result of her own disabilities. Roe notes that the jury was instructed that its economic loss award was limited to those costs that were “extraordinary due to C.E.’s disabilities,” and should not include the “ordinary costs of raising a child.” She further argues that the borough should not be allowed to avoid liability simply because C.E. reasonably decided not to abort her pregnancy or put her child up for adoption. She argues that because they will remain responsible for the substantial ordinary costs of raising a child, there is no risk that other developmentally disabled women will decide whether to keep and raise their children based on whether they might recover a similar award.

Under the circumstances of this case, we agree with the trial court and affirm this special damage award. This case is distinguishable from Poor and M.A. because C.E. sought only “extraordinary” damages, as opposed to ordinary expenses of raising the child. In Poor we considered a certified question from the United States District Court about a mother’s damages claims against her biofeedbaek therapist who tor-tiously impregnated her. We agreed with the decision of the California Court of Appeal in Barbara A. v. John G., and held that the mother could not recover damages for the cost of raising the child because the fact a tort caused the child’s conception did not relieve the mother of her statutory duty to support her child. We were concerned that permitting the damages the mother sought would reduce the parents’ duty of support, and might harm a child who later learned of the circumstances of the award.

In M.A. we applied similar reasoning and denied recovery of child-raising expenses to a minor mother whose doctor negligently failed to diagnose her pregnancy. In that context we were also concerned that a contrary ruling would unduly affect the decisions of pregnant women about whether to have and raise their children. We held that the mothers could recover the tort damages for proximately caused injuries but “[bjeyond that point, no compensation for expenses or other damages related to rearing a healthy child may be allowed.”

Here, Roe offered the testimony of a rehabilitation nurse and vocational specialist who presented a “life care plan” segregating the ordinary costs of raising M.E. from the unique costs C.E. would incur as a result of C.E.’s disabilities, including the cost of special parenting skills training and counseling for C.E. to deal with the stress of being a parent.

The policy considerations discussed in Poor and M.A. do not apply here. Developmentally disabled women are unlikely to make child-bearing and child-rearing decisions based on the possibility they may recover extraordinary costs should they file suit — especially because they will still be responsible for all ordinary child-rearing expenses. Moreover, recovery of extraordinary damages in this situation is unlikely to cause C.E.’s child to suffer harm or feel unwanted. The sort of costs awarded here can be segregated and distinguished from the ordinary and unrecoverable costs, and there is little fear of the systemic cost-shifting the borough envisions. We accordingly hold that the trial court properly allowed the jury to award damages for C.E.’s extraordinary costs associated with raising M.E.

F. The Trial Court Did Not Abuse Its Discretion by Admitting into Evidence One Page of a Deposition.

The former director of the residential program, Kathleen Addison, testified telephonically at trial after the jury saw her video-taped deposition. When Addison testified at trial that she did not remember making a statement at her deposition, Roe attempted to impeach Addison with the deposition statement. Addison ultimately agreed that she must have made the statement. Roe moved into evidence the page of Addison’s deposition containing the disputed statement. Over the borough’s objection, the court received the single page of Addison’s deposition into evidence and allowed the jury to consider it during its deliberations.

The borough argues on appeal that it was reversible error to admit the statement into evidence. It acknowledges that the trial court had discretion to admit prior inconsistent statements if the proper foundation was laid, but argues that the court should not have admitted this page into evidence because the witness admitted making the prior statement. It argues that it was prejudiced because the deposition page allowed the jury to give undue weight to a mistake of a critical witness.

We review a trial court’s evidentiary rulings for abuse of discretion. Admitting the page into evidence did not abuse the court’s discretion. And the borough does not show that the page contained irrelevant or otherwise harmful material, or that its contents could have somehow unduly influenced the jury and prejudiced the borough. We discern no error.

IV. CONCLUSION

We therefore AFFIRM the judgment.

BRYNER, Justice, not participating.

      . Although this appeal turns on legal issues, on appeal we take all permissible factual inferences in favor of the appellee, the party who prevailed at trial.

      . The borough provided various services including housing, mental health, and assisted-living services, and taught basic living and social interaction skills to developmentally disabled and mentally ill residents under the umbrella of its residential treatment programs. The parties are not consistent in referring to this "RTP” as the borough’s "Residential Treatment Program” or "Residential Training Program.” Our analysis does not turn on this distinction, and we refer to it throughout as the borough’s "residential program.”

      . Joan Roe, the named plaintiff, is C.E.’s mother. Two suits were originally filed on C.E.'s behalf. Those cases were consolidated and Roe was substituted as C.E.’s legal guardian. Roe's initial complaint alleged individual emotional distress claims that were later dismissed. These were the only claims Roe brought in her individual capacity, and she was accordingly dismissed as an individual plaintiff.

      . Roe initially commenced a cross-appeal but "abandoned all points on cross-appeal” in a notification filed after she submitted her brief on January 10, 2002. We accordingly dismissed the cross-appeal.

      . Former AS 09.17.080 (1989) stated:
      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 of 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 also shall 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 several liability in accordance with that party's percentage of fault.
      Former AS 09.17.900 (1986) stated:
      Definition. In this chapter "fault” includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault.

      . We review de novo questions of law, including a trial court’s interpretation of a statute, adopting the rule of law most persuasive in light of precedent, reason, and policy. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . Restatement (Second) of Torts § 315 (1965) states:
      There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
      (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
      (b) a special relation exists between the actor and the other which gives to the other a right to protection.
      Roe cites Division of Corrections v. Neakok, 721 P.2d 1121, 1126 (Alaska 1986), for the proposition that § 315 reflects the law in Alaska.

      . 957 S.W.2d 815, 823 (Tenn.1997) (citing potential for perverse incentive effects apportioning damages in analogous situation, and difficulty of comparing relative culpability when intentional conduct is foreseeable risk created by negligent actor).

      . 850 P.2d 628, 633 (Alaska 1993).

        .See Arctic Structures, Inc. v. Wedmore, 605 P.2d 426, 430-33 (Alaska 1979).

      . Ch. 80, § 1, SLA 1970 (codified as amended at AS 09.16.010-.060).

      . Former AS 09.16.010(c) (1985).

      . Former AS 09.17.080 (1986).

      . Ch. 139, § 1, SLA 1986. See supra note 5 for text of AS 09.17.900 (1986).

      . AS 09.17.900 (1997) provides in pertinent part: "In this chapter, 'fault’ includes acts or omissions that are in any measure negligent, reckless, or intentional toward the person or property of the actor or others, or that subject a person to strict tort liability.”

      . The Governor’s Advisory Task Force on Civil Justice Reform recommended in 1996 amending the definition of "fault” contained in section .900. The task force’s report to the governor entitled the proposed modification to section .900, “Clarification Of Liability For Intentional Acts.” The accompanying commentary similarly implied that the proposed amendment would "clarify” section ,900’s applicability to intentional torts. The proposed amendment was presented to the legislature as the task force recommended, and the Sponsor Statement introducing the bill reiterated the task force's suggestion that the amended definition would "clarify” section .900. See Report of the Governor’s Advisory Task Force on Civil Justice Reform, at 51 (1996); Sponsor Statement of SSHB 58(JUD): Tort Reform Bill.
      Despite these characterizations of the amendment as a "clarification,” we conclude that amending the definition to include intentional conduct substantively altered the status quo. The legislative history was equivocal. The same documents the borough relies on also state that the task force was charged with suggesting a series of "Civil Justice Reforms,” not "clarifications.” Similarly, the amended redefinition was introduced as part of a 1997 "Tort Reform Bill.” Moreover, the Sponsor Statement introducing the bill spoke of "a compelling need for substantial reforms in the civil justice system.” The legislative history does not justify a conclusion that the amendment merely confirmed that the definition encompassed intentional conduct. We assume that words added to a statute are not mere surplusage. Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 761 (Alaska 1999) ("We must also presume that the legislature intended eveiy word, sentence, or provision of a statute to have some purpose, force, and effect, and that no words or provisions are superfluous. Furthermore, we generally presume that an amendment to an unambiguous statute indicates a substantive change in the law.”) (internal quotation marks and footnote omitted).

      . See Alaska Fed'n for Cmty. Self-Reliance v. Alaska Pub. Util. Comm’n, 879 P.2d 1015, 1022 (Alaska 1994) (applying common law where statute was silent on number of votes necessary for body to take action); Alex v. State, 484 P.2d 677, 678 (Alaska 1971) (looking to common law to define "escape” absent definition in escape statute); Herrin v. State, 449 P.2d 674, 676 (Alaska 1969) (imputing common law intent where statute was silent on intent requirement).

      . Restatement (Third) of Torts: Apportionment of Liability § 14 (2000).

      . The Reporter’s Note to Comment b of section 14 makes it clear that the logic of this section is grounded on pre-1997 precedent, and is consistent with decisions of jurisdictions which had abolished joint and several liability. See Restatement (Third) of Torts: Apportionment of Liability § 14 cmt. b (2000).

      . We are not ruling on how this case would be decided under current law, as that question is not before us.

      . Griffith v. Taylor, 12 P.3d 1163, 1166 (Alaska 2000).

      . Stinson v. Holder, 996 P.2d 1238, 1244 (Alaska 2000).

      . Id.

      . Id.

      . See Taylor v. Johnston, 985 P.2d 460, 464 (Alaska 1999) (defining "assault” to require finding of intent to cause harmful or offensive contact).

      . Former AS 09.17.010 (1986) provided in part:
      (a) In an action to recover damages for personal injury based on negligence, damages for noneconomic losses shall be limited to compensation for pain, suffering, inconvenience, physical impairment, disfigurement, loss of enjoyment of life and other nonpecuniary damage.
      (b) The amount of damages awarded by a court or a jury under (a) of this section may not exceed $500,000 for each claim based on a separate incident or injury.

      . Former AS 09.17.010(b) (1986).

      . Courts in other jurisdictions similarly refuse to treat separate recoveries for separate incidents of sexual misconduct as a single claim of damages under statutory damage caps limiting recovery for each “claim.” See, e.g., Maguire v. Montana, 254 Mont. 178, 835 P.2d 755, 762 (1992) (holding each incident of rape was separate wrongful act giving rise to separate “claim” under statutory cap limiting damages for "each claim” against governmental entity).

      . Former AS 09.17.010 (1986).

      . Id.

      . 54 P.3d 271, 281 (Alaska 2002).

      . Id. at 281-82.

      . See Part III.C.

      . 791 P.2d 1005 (Alaska 1990).

      . 951 P.2d 851 (Alaska 1998).

      . 145 Cal.App.3d 369, 193 Cal.Rptr. 422 (1983).

      . Poor, 791 P.2d at 1007 (citing AS 25.20.030).

      . Id. at 1007-08.

      . 951 P.2d at 855.

        .Id.

      . Id. at 856.

      . The borough cites Alaska Rule of Evidence 613(b) and Nunn v. State, 845 P.2d 435, 440 (Alaska App.1993).

      . Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 47 (Alaska 2000).


author: MATTHEWS, Justice.

text:
    KOYUKUK RIVER TRIBAL TASK FORCE ON MOOSE MANAGEMENT, Appellant, v. Frank RUE, in his official capacity as Commissioner of Fish and Game, State of Alaska, and the Board of Game, State of Alaska, Appellees.
    No. S-9865.
    Supreme Court of Alaska.
    Feb. 7, 2003.
    Michael J. Walleri, Fairbanks, for Appellant.
    Kevin M. Saxby, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellees.

      Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

I. INTRODUCTION

The Koyukuk River Tribal Task Force on Moose Management appeals the superior court’s award of partial costs and attorney’s fees to the Commissioner of the Alaska Department of Fish and Game and the Board of Game. Because the Task Force may qualify as a public interest litigant, we remand for a determination of the Task Force’s eligibility for public interest litigant status and we therefore vacate the award of costs and attorney’s fees.

II. FACTS AND PROCEEDINGS

The Koyukuk River Tribal Task Force on Moose Management brought suit against the Board of Game, alleging increased moose hunting and declining moose populations in the Koyukuk River drainage. The Task Force accused the Board of violating Alaska statutes and the Alaska Constitution in its management of the moose populations in the area and sought orders requiring the Board to comply with the statutes and the constitution.

The Task Force did not raise its issues before the Board in the form of a regulatory proposal or a petition for rulemaking, but chose instead to bring a civil lawsuit against the Board. The superior court dismissed the case on summary judgment because the Task Force did not exhaust administrative remedies and alternatively because the doctrine of primary jurisdiction required that the case be heard first by the Board of Game. The Board moved for partial costs and attorney’s fees, which the Task Force contested on several grounds, including claims that Civil Rules 79 and 82 were inapplicable to the case and that the Task Force was a public interest litigant. The superior court found for the Board on both issues and awarded partial costs and attorney’s fees in the amount of $6,045.40. The Task Force appeals the award of costs and attorney’s fees, but does not appeal the summary judgment.

III. STANDARD OF REVIEW

We will overturn an award of attorney’s fees if the award is an abuse of discretion or is manifestly unreasonable. “[I]t is an abuse of discretion to award attorneys’ fees against a losing party who has in good faith raised a question of genuine public interest before the courts.” We review a superior court’s decision as to whether or not a party is a public interest litigant for abuse of discretion.

IV. DISCUSSION

A. The Task Force’s Public Interest Litigant Status

Following summary judgment, the Task Force argued that it was a public interest litigant and the Board challenged this claim. The superior court awarded the Board partial costs and attorney’s fees, stating that “[t]he court finds that plaintiff has failed to prove it is a public interest litigant.” The Task Force appeals this award, claiming that the superior court abused its discretion in refusing to find that it was a public interest litigant.

To be considered a public interest litigant, a party must generally satisfy the following criteria:

(1) Is the case designed to effectuate strong public policies?
(2) If the plaintiff succeeds will numerous people receive benefits from the lawsuit?
(3) Can only a private party have been expected to bring the suit?
(4) Would the purported public interest litigant have sufficient economic incentive to file suit even if the action involved only narrow issues lacking general importance?

A party must satisfy all four criteria in order to qualify as a public interest litigant.

1. The case is designed to effectuate strong public policies.

The Task Force contends that its lawsuit was designed to “reduce the harvest pressure on the Koyukuk River Moose population, which all parties admit is an important food resource for subsistence and non-subsistence hunters in Alaska,” and sought to enforce state statutes and the state constitution. They claim that “litigation seeking to conserve Alaska’s natural resources” serves a public purpose.

We have held that “a suit brought to ensure compliance with statutory and constitutional policies that concern the public as a whole effectuates strong public policies.” Subsistence is an area of great public interest in Alaska and in challenging the Board’s enforcement of subsistence statutes, the Task Force would appear to be concerned with strong public policies.

2. If the plaintiff succeeds numerous people may receive benefits from the lawsuit.

The Task Force contends that “all subsistence users, which State law defines to include both the residents of the Koyukuk River Valley and urban subsistence hunters” would benefit from this litigation. The Board does not contest this claim.

3. Only a private party can have been expected to bring suit.

The Task Force contends that because the lawsuit is against the state to enforce compliance with regulations and the constitution, only a private party could reasonably be expected to bring this lawsuit. The Board does not challenge this assertion.

4. The purported public interest litigant would not have sufficient economic incentive to file suit even if the action involved only narrow issues lacking general importance.

The Task Force contends that the relief it requested sought to limit or eliminate non-subsistence use of moose in the area. We have said that subsistence use does not create a sufficient economic incentive to sue such that it would negate public interest status. The Task Force did not request damages, and economic incentives do not appear to have driven the litigation.

Although it appears from the record that the Task Force complies with the criteria for public interest litigant status, it is impossible to confirm this appearance without proof to substantiate the Task Force’s apparent compliance. As the state correctly points out, without proof of the Task Force’s identity and purpose, there is no way to confirm that its individual members would have no economic interest in suing in their own right. Similarly, absent such evidence it cannot be determined with confidence that the Task Force brought its action in good faith to effectuate strong public policies.

Thus, the question remaining is the exact identity of the Task Force. In its complaint, the Task Force described itself and its purpose as follows:

The Koyukuk River Tribal Task Force on Moose Management is a coalition of village councils for the villages of Allakak-et, Alatna, Evansville, Hughes, Huslia, Wiseman, and Koyukuk, which are located along the Koyukuk River in the Interior of Alaska. The Task Force’s purpose is to protect the local subsistence use of the moose population in the Koyukuk drainage, cooperate with the ADF & G in development of a Koyukuk River Moose Management Plan, and negotiate cooperative agreements on behalf of the member tribes with the ADF & G, the Alaska State Troopers, and USF & WS for the enforcement and other management actions necessary to protect the moose population of the area.

Similarly, in its decision on the merits the superior court found that “The Koyukuk River Tribal Task Force on Moose Management is a coalition of the village councils for Alla-kaket, Alatna, Evansville, Hughes, Huslia, Wiseman, and Koyukuk.”

But no affidavit was submitted by the Task Force describing its membership. This is understandable since the court in its decision on the merits had seemingly accepted the membership description set out in the complaint when the Task Force filed its opposition to the Board’s motion for attorney’s fees. We therefore believe that it is appropriate to remand this case for a determination of the Task Force’s identity. On remand, the court may call for affidavits or other evidence of the Task Force’s membership. If this is contested, the court may hold an evidentiary hearing.

B. Attorney’s Fees

Following the grant of summary judgment, the Board requested and the superior court granted partial costs and attorney’s fees pursuant to Civil Rules 79 and 82. The Task Force argues that the superior court incorrectly treated this case as an administrative appeal and that Civil Rule 82 does not apply to administrative appeals. The superior court correctly noted, however, that “[t]he plaintiff chose to bring this as a regular civil action, thus Rule 82, not the rule on administrative appeals is applicable.” Because we are remanding for a determination of the Task Force’s status as a public interest litigant, we vacate the superior court’s award of partial costs and attorney’s fees. On remand, Civil Rules 79 and 82 will appropriately apply if the Task Force is not found to qualify for public interest litigant status.

V. CONCLUSION

We REMAND this case for a determination of the Task Force’s eligibility as a public interest litigant. We accordingly VACATE the award of costs and attorney’s fees.

      . Feichtinger v. Conant, 893 P.2d 1266, 1268 (Alaska 1995).

      . Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974).

      . Citizens Coalition for Tort Reform, Inc. v. McAl-pine, 810 P.2d 162, 171 (Alaska 1991).

      . Anchorage Daily News v. Anchorage Sch. Dist., 803 P.2d 402, 404 (Alaska 1990).

      . Id.

      . Gwich'in Steering Comm. v. State, Office of the Governor, 10 P.3d 572, 585 (Alaska 2000).

      . Alaska Survival v. State, Dep’t of Natural Res., 723 P.2d 1281, 1292 (Alaska 1986) (“[Reliance] on [state] resources for personal rather than commercial purposes ... is not the type of substantial economic interest sufficient to bar a litigant from qualifying as a public interest plaintiff.”). See also Gwich’in, 10 P.3d at 585 (finding that a subsistence interest in caribou is insufficient to defeat public interest status); Eyak Traditional Elders Council v. Sherstone, Inc., 904 P.2d 420, 426 (Alaska 1995) ("[W]e [have] held that a group partially motivated by a threat to its subsistence lifestyle did not have sufficient economic incentive to sue.”).

      .As an alternative ground for affirming the superior court's denial of public interest litigant status, the state argues that "it is clear from the record that the lawsuit lacked a good faith basis and so was not brought in the public interest. Ergo, the case was not 'designed to effectuate strong public policies.’ ” But the state did not ask the superior court to make an affirmative finding that the Task Force filed its action in bad faith or argue bad faith as an independent ground for denying public interest litigant status; it simply argued that the Task Force had failed to prove that it pursued a good faith claim designed to effectuate strong public policies. Because the state’s alternative ground raises factual issues that the superior court had no occasion to address in its findings, we decline to consider il here.


author: BRYNER, Justice.

text:
    Sherie CROSBY, Individually, and as Personal Representative of the Estate of Joshua Nathaniel Van Bavel, Appellants, v. Normandy J. HUMMELL, Appellee.
    No. S-9987.
    Supreme Court of Alaska.
    Feb. 7, 2003.

      Brett Von Gemmingen, Anchorage, for Appellants.
    Marc G. Wilhelm, Richmond & Quinn, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Sherie Crosby appeals from a judgment denying her claim for the wrongful death of her fifteen-year-old son, who was fatally injured in an accident while driving a friend’s mother’s car*. Crosby alleged that her son’s friend committed negligence per se by permitting an unlicensed person to drive in violation of AS 28.15.281(b). Crosby argues that the trial court erred by instructing the jury to consider all the elements needed to establish a violation of AS 28.15.281(b) when only one element was actually disputed, by denying her motion for summary judgment on the issue of permission to drive, and by excluding evidence of an admission by Normandy. Because we find no reversible error, we affirm the judgment.

II. FACTS AND PROCEEDINGS

This appeal arises from a retrial after our remand in Ardinger v. Hummell. There we described the underlying facts as follows:

On the afternoon of December 4 several teenagers, including Joshua Van Bavel, age fifteen, and Normandy Hummell, age fourteen, agreed to meet later that night, after their parents were asleep, to drive around together. At approximately 1:30 or 2:00 a.m., Normandy took her mother’s car keys without her mother’s knowledge or permission, pushed the car down the driveway with a friend, Christina Kilborn, and drove to Joshua’s house. The roads were icy, and Normandy had trouble handling the car. The girls found then-friends, David Lakings and Joshua, at Joshua’s mother’s house and asked whether the boys wanted to go out as planned.
According to the testimony of Christina and David, Normandy was scared of driving and at first asked Joshua to drive her home so that she and Joshua could wait for David to pick them up in David’s mother’s vehicle. But on the way to the car, Normandy insisted that she wanted to drive. She and Joshua argued about who should drive. The keys were already in the ignition, and Joshua got into the driver’s seat, which he refused to relinquish. While Joshua and Normandy continued to argue, Joshua drove the four teenagers to David’s house where David and Christina stayed.
Coast Guard security officers spotted Joshua and Normandy as they continued on to Normandy’s house. The officers observed the car lurching at a stop sign, as if the driver were having trouble with the clutch, and they decided to perform a welfare check to “make sure everything [was] okay.” The officers turned on their vehicle’s blue flashing lights. As one of the officers approached Normandy’s mother’s car on foot, Joshua sped away. The officer estimated that Joshua accelerated to a speed of seventy miles per hour. Joshua lost control of the car and collided with a utility pole. The collision caused his death.

After the accident, Joshua’s mother, Sherie Crosby (then Ardinger) sued Normandy Hummell, claiming that Normandy was liable under theories of negligent entrustment and negligence per se for permitting Joshua, an unlicensed driver, to drive her mother’s car. The jury returned a verdict in favor of Normandy. On appeal, we reversed and remanded for a new trial, finding, among other things, that the jury should have been instructed to hold Normandy to an adult standard of care and should have been told that Normandy’s conduct would be negligent per se if the jury found that she had violated AS 28.15.281(b), a provision of the motor vehicle code that makes it unlawful for a person in control of a motor vehicle to knowingly permit the vehicle to be driven by an unlicensed driver.

At the trial on remand, Crosby pursued only her claim of negligence per se, again contending that Normandy had violated AS 28.15.281(b) by allowing Joshua to drive even though she knew that he had no driver’s license. The jury on retrial rejected the claim and returned a verdict in Normandy’s favor, finding that she had not violated the statute. Crosby appeals.

III. DISCUSSION

A. Jury Instructions

Crosby first argues that the trial court erred by giving the jury the standard negligence per se instruction, which placed in issue and required the jury to find all of the necessary elements of a violation of AS 28.15.281(b). The disputed instruction stated, in critical part:

There is a law of the State of Alaska, Alaska Statute 28.15.281(b), which provides:

A person may not authorize or knowingly permit a motor vehicle owned by the person or under the control of the person to be driven in this state by a person who is not validly licensed.
You must decide whether it is more likely true than not true that the defendant, Normandy Hummell, violated this law.

Pointing to Normandy’s admission that Joshua was unlicensed, to our prior decision in Ardinger v. Hummell, which found it undisputed that Normandy assumed control of the car- by taking it from her mother, and to statements by Normandy’s counsel describing permission as the central point in issue, Crosby insists that the trial court should have given her proposed negligence per se instruction, which would have made it clear that permission was the only element of AS 28.15.281(b) that was actually in dispute.

Crosby’s argument is unpersuasive. The challenged instruction accurately stated all the statutory elements of the offense upon which Crosby predicated her claim of negligence per se — permitting an unlicensed person to drive, a violation of AS 28.15.281(b). Even if some elements of that offense were wholly undisputed, we fail to see how the instruction’s completeness would, in itself, create a risk of jury error. Crosby fails to identify any case-specific circumstances suggesting that her jury needed an instruction confirming a seemingly obvious point: that an undisputed factual issue was indeed undisputed. To the extent that undisputed evidence might have established some aspects of Crosby’s negligence per se claim, then, we see no reason to suppose that the completeness of the challenged instruction on negligence per se would have had any effect on the jury other than to guide it to a proper conclusion on the undisputed points. After all, factfinding is the jury’s quintessential role.

More important, the facts of the case are not nearly as straightforward as Crosby would have us believe, and they fail to support Crosby’s premise that, under our holding in Ardinger v. Hummell, the issue of Normandy’s control of the car was not in dispute. Our prior opinion did find it “undisputed that Normandy had physical possession and control of the car when she allegedly allowed Joshua to drive.” And undisputed evidence also established that Joshua ultimately gained control of the car. But as our opinion made clear, a storm of controversy swirled around what occurred between these two points:

Normandy, Christina, and David all testified that Normandy argued with Joshua about who should drive. Collectively, they described how Joshua took control of the driver’s seat and refused to relinquish it. Their testimony suggests that Normandy may not have authorized or permitted Joshua to drive. Indeed, throughout this litigation the parties vigorously disagreed about whether Normandy authorized or knowingly permitted Joshua to drive.

As we recognized, then, the crux of the dispute was how Joshua gained control of the car — whether Normandy willingly gave him control and authorized him to drive or whether he took possession despite her protests and she thereafter acquiesced in his driving only because continued resistance was futile.

Thus, our prior opinion did not, as Crosby maintains, hold that control was an undisputed issue. To the contrary, we effectively recognized that the disputed issues of control and permission were inseparably related. Moreover, because the case on remand was submitted to the jury as a claim of negligence per se, which the original jury was not allowed to consider, the relationship between control and permission became further complicated by the narrow statutory meaning of permission used in AS 28.15.281(b).

In ordinary usage, the verb “permit” encompasses at least two distinct meanings: one is relatively active and specific, as in to give permission to someone or to authorize something to happen; the other is broader and more passive, as in to tolerate something or to allow it to happen. By requiring that permission to drive be knowingly given by a person in control of a motor vehicle, AS 28.15.281(b) uses the verb in its narrow sense. In the present ease, for example, the statute unmistakably would have precluded the jury from finding a violation of the statute if it believed, as Normandy claimed, that Normandy did not knowingly surrender control of her car to Joshua and that she “permitted” him to drive only in the broader sense of the word — by ceasing her resistance and acquiescing to Joshua’s demand to drive once she recognized that she had no ability to control his conduct.

Considering the totality of these circumstances, we are unable to conclude that the trial court erred in giving the jury a negligence per se instruction that listed all the elements of AS 28.15.281(b). Indeed, an instruction like Crosby’s suggested alternative, which proposed to tell the jury to consider only the issue of permission, might have caused significant confusion by unduly constraining the jury’s ability to consider all relevant evidence bearing on the issue of negligence per se.

B. Summary Judgment

Crosby next contends that the superi- or court erred in failing to enter summary judgment on her claim of negligence per se. Before the retrial on remand, Crosby moved for summary judgment on her claim that Normandy violated AS 28.15.281(b). Her summary judgment motion asserted that our decision in Ardinger v. Hummell resolved all but one element necessary to prove a violation of the statute — whether Normandy had given Joshua permission to drive. The motion then alleged that Normandy’s answer to Crosby’s complaint had conclusively admitted that Normandy gave Joshua permission to drive. Crosby’s complaint alleged that, on the day of the accident, Normandy had permitted Joshua to drive her mother’s car; in answering this allegation, Normandy admitted giving Joshua permission but alleged that Joshua had “specifically requested to drive.” This answer, Crosby’s summary judgment motion reasoned, constituted a binding judicial admission that conclusively proved permission.

The superior court rejected this argument. Noting that Crosby had failed to claim a judicial admission on this point before the first trial and instead had elected to litigate the issue of permission, the court applied Alaska Civil Rule 15(b), which authorizes courts to treat issues not raised or disputed in the pleadings as being disputed when they “are tried by express or implied consent of the parties.” Crosby challenges this ruling. Without addressing the propriety of the trial court’s reliance on Rule 15(b), Crosby’s opening brief simply asserts that Normandy’s answer qualifies as a conclusive admission. Crosby’s reply brief expands on the issue by accusing the trial court of applying a double standard. Crosby reasons that, since the trial court allowed Normandy to dispute the issue of control on retrial — an issue that, according to Crosby, our first opinion definitively found to be undisputed — fairness dictates that the court should likewise have allowed Crosby to claim that the previously disputed issue of permission was now undisputed. But Crosby’s argument fails for several reasons.

To qualify as a judicial admission, a party’s answer must be a clear, deliberate, and unequivocal statement of fact. Yet as our discussion of the jury instruction on negligence per se illustrates, Normandy’s answer acknowledging that she had “permitted” Joshua to drive is susceptible of more than one meaning, and only the narrower meaning would establish a violation of AS 28.15.281(b). In context, then, Normandy’s answer is not an unequivocal statement of fact and therefore does not qualify as a judicial admission.

Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

Moreover, the superior court’s reliance on Rule 15(b) was appropriate. By allowing the parties to litigate the issue of permission as a disputed point at the first trial, the superior court effectively disregarded any inconsistent admissions on the point set out in the parties’ pleadings. On appeal following the first trial, this court expressly held that “a legitimate factual dispute existed” as to whether “Normandy authorized or knowingly permitted Joshua to drive.” On remand, then, this holding established the law of the case, which the trial court properly followed.

Finally, we find no merit in Crosby’s claim of unequal treatment. Although Crosby complains of being unfairly subjected to a double standard, her argument mistakenly assumes that the trial court disregarded a conclusive holding in our first opinion that the issue of control was undisputed. As we decided earlier in this opinion, our prior opinion did not so hold.

C. Evidentiary Ruling

Crosby alternatively argues that Normandy’s answer admitting that she “permitted” Joshua to drive was at least relevant evidence tending to show that Normandy had given Joshua permission. By completely excluding this evidence, Crosby contends, the trial court committed reversible error.

Although we find considerable merit in Crosby’s position that Normandy’s answer was admissible as evidence of permission, we need not conclusively decide the issue. Normandy made almost identical admissions in a pretrial deposition and an affidavit. At trial, the superior court allowed Crosby’s counsel to rely on these admissions and to question Normandy about her statements. And Crosby’s attorney discussed the admissions in his closing argument to the jury. Considering the availability of these parallel admissions, we find no reasonable likelihood that exclusion of Normandy’s answer to the complaint had any appreciable effect on the verdict. Even if error, then, exclusion of this evidence would have been harmless at most and would not warrant reversal.

IV. CONCLUSION

We AFFIRM the trial court’s jury instructions, denial of summary judgment, and evi-dentiary rulings.

      . 982 P.2d 727 (Alaska 1999).

      . Id. at 729-30.

      . Id. at 730.

        .Id.

      . Id. at 730-31.

      . Id. at 733-34.

      . We review jury instructions de novo and, if we find error, look from a juror’s perspective at whether it probably would have affected the verdict. Id. at 730 n. 1; Vincent by Staton v. Fairbanks Mem'l Hosp., 862 P.2d 847, 851 (Alaska 1993).

      . Normandy expressly acknowledged knowing that Joshua did not have a valid driver's license.

      . In concluding that Normandy should be held to an adult standard of care because she had engaged in an adult activity, our opinion noted:
      In this case it is undisputed that Normandy had physical possession and control of the car when she allegedly allowed Joshua to drive. She took the keys from her mother; she drove the car to Joshua’s house, where, assuming entrustment, she transferred physical control of the vehicle to Joshua. From the moment she assumed control of the car, any decisions she made as to the exercise and relinquishment of that control should be evaluated under an adult standard.

        Ardinger, 982P.2dat731.

      . At the trial on remand, Normandy's counsel stated: "This whole trial has been over whether there was permission.”

      .Crosby proposed the following jury instruction on negligence per se:
      There is a law of the State of Alaska [that] provides:
      A person may not authorize or knowingly permit a motor vehicle owned by the person or under the control of the person to be driven in this state by a person who is not validly licensed.
      AS 28.15.281(b).
      In this case it is undisputed that Normandy Hummell had physical possession and control of the car when she allegedly allowed Joshua Van Bavel to drive. It is also undisputed that Joshua Van Bavel was not validly licensed. The issue for you to decide is whether Normandy Hummell authorized or knowingly permitted Joshua Van Bavel to drive[] her mother's car.
      If you decide that it is more likely true than not true that [] Normandy Hummell violated any part of the law, then you are required to find Normandy Hummell negligent.
      If you find that Normandy Hummell did not violate the law, then you should pay no further attention to this law.

      . Ardinger, 982 P.2d at 731 (emphasis added).

      . Id. at 729, 734.

      . Id. at 734 (emphasis added).

      . See Webster's New World Dictionary 1060 (2d college ed.1980) (defining "permit” to mean, in relevant part: "1. to allow; consent to; tolerate ... 2. to give permission to; authorize ... ”).

      . Our decision affirming the instruction on negligence per se makes it unnecessary to consider Crosby’s related challenge to the instruction defining "control,” since Crosby’s challenge to that instruction is based on the premise that the element of control was not in issue.
      We also need not decide Crosby’s remaining arguments addressing other jury instructions. Crosby challenges Instruction No. 19, which informed the jury that "[a] person’s failure to have an operator’s license does not necessarily mean that the person is incompetent or unfit as a driver.” Although the meaning and purpose of this instruction seem somewhat unclear, we agree with Normandy's contention that the instruction’s only apparent relevance was to the issue of proximate cause, or, as Jury Instruction No. 17 put the issue, whether the violation of AS 28.15.281(b) that Normandy allegedly committed was "a legal cause” of Joshua’s death. Yet the instructions directed the jury to decide this issue only if the jury found that Normandy had violated the statute. Since the special verdict form establishes that the jury found no statutory violation and returned its verdict without addressing the issue of legal cause, we find no reasonable likelihood that Instruction No. 19’s disputed comment on incompetent and unfit driving had any substantial effect on the verdict. Crosby additionally challenges language in Instruction No. 17 describing circumstances in which a violation of AS 28.15.281(b) would be excused. Again, however, the jury’s finding that Normandy did not violate the statute precluded it from reaching this issue.

      . We review summary judgment decisions de novo. Barios v. Brooks Range Supply, Inc., 26 P.3d 1082, 1085 (Alaska 2001). We have explained that:
      Summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” A genuine issue of fact "exists where reasonable jurors could disagree on the resolution of a factual issue.” The court must view all facts in the light most favorable to the non-moving party. The party opposing summary judgment must set forth specific facts demonstrating that a material issue of fact exists.

        Anchorage Police Dep’t Employees Ass’n v. Municipality of Anchorage, 24 P.3d 547, 566 (Alaska 2001) (citations omitted).

      . Alaska Rule of Civil Procedure 15(b) provides, in part:

      . Pugliese v. Perdue, 988 P.2d 577, 580 (Alaska 1999); Hayes v. Xerox Corp., 718 P.2d 929, 931 (Alaska 1986).

      . Ardinger, 982 P.2d at 734.

      . See Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763 (Alaska 1977) ("The doctrine of the law of the case prohibits the reconsideration of issues which have been adjudicated in a previous appeal in the same case.”).

      . Normandy’s affidavit asserted:
      We discussed who would drive my mother’s car. Joshua asked me a question from a driver’s test he had taken and said that if I could not answer it, he should drive. When I could not answer the question, I agreed that he could drive to David Laking’s house and then back to my home.

      . An erroneous ruling requires reversal only if our review of the record convinces us that it probably had a substantial effect on the jury. Vincent by Staton v. Fairbanks Mem’l Hosp., 862 P.2d 847, 853 & n. 11 (Alaska 1993); accord Alaska R. Civ. P. 61 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”).
      Crosby additionally urges us to provide guidance on remand by making two further findings: first, that the trial court erred in ruling that AS 09.15.010 does not allow a parent to recover damages for loss of a child's society beyond tire child’s age of majority; and second, by finding that a statement made in one of Normandy’s pretrial motions regarding causation was an evi-dentiary admission. Because we affirm the judgment in its entirety, these issues are moot.