Millo v. Delius

872 F. Supp. 2d 867, 2012 U.S. Dist. LEXIS 65211, 2012 WL 1906552
CourtDistrict Court, D. Alaska
DecidedMay 9, 2012
DocketCase No. 3:11-cv-00027-SLG
StatusPublished
Cited by5 cases

This text of 872 F. Supp. 2d 867 (Millo v. Delius) is published on Counsel Stack Legal Research, covering District Court, D. Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Millo v. Delius, 872 F. Supp. 2d 867, 2012 U.S. Dist. LEXIS 65211, 2012 WL 1906552 (D. Alaska 2012).

Opinion

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

SHARON L. GLEASON, District Judge.

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

FACTS AND PROCEDURAL BACKGROUND

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

The facts, viewed in the light most favorable to the plaintiffs for purposes of this summary judgment motion, are as follows: Dr. Delius is a pediatric heart surgeon from Detroit, Michigan.1 Prior to the events giving rise to this action, he had been on twenty-one guided game hunts.2 In May 2010, Dr. Delius was on a guided hunting trip with Alaska Peak and Seas, a company owned by Mark Galla.3 Dr. Delius had previously gone on two black bear hunting trips with Mr. Galla, but this was his first brown bear hunt.4 Mr. Millo and Mr. Galla were the guides on the hunt.5 There were two other clients besides Dr. Delius, as well as a cook.6

The shooting occurred on May 80, 2010 on the ninth day of the ten-day trip at approximately 10:00 p.m. on the flats at the head of the Bradfield Canal in Southeast Alaska.7 The sun had set at approximately 9:25 p.m.8

[870]*870At the time of the shooting, Mr. Galla was hunting with the other two clients.9 Mr. Millo was hunting with Dr. Delius.10 The two men had been traveling together until they reached a slough that Dr. Delius was uncomfortable crossing.11 Mr. Millo crossed the slough and directed Dr. Delius to take an alternate route approximately forty yards down the slough.12 When Dr. Delius crossed the slough, he saw an aggressive bear on top of a cut bank, with Mr. Millo ten to twelve feet below.13 The Wrangell Police later determined that Dr. Delius was approximately 178 feet away from that bank at that time.14 Mr. Millo chased the bear away, but it returned.15 Dr. Delius then heard Mr. Millo shouting at him to shoot the bear.16 Dr. Delius was not wearing his glasses, as he had removed them for the stream crossing.17 He has described the visibility conditions as “low-light.” 18 Mr. Galla has testified that, shortly before he heard the fatal gunshot, he and the other two clients had discussed stopping the hunt for the day because of the light conditions.19 Mr. Galla has also testified that the light at the time of the shooting was not so poor that he would have been unable to distinguish between a person and a bear.20 Mr. Millo was dressed in brown, earth-toned clothing with no blaze orange or other bright colors.21 Dr. Delius looked through the scope of his Blaser rifle, saw a moving silhouette where the bear had been, shot once, and then yelled to Mr. Millo asking if he had shot the bear.22 When Mr. Millo did not respond, Dr. Delius made his way to the area he had shot at.23 It took Dr. Delius ten to fifteen minutes to reach Mr. Millo, whom he found at the top of the bank, where Dr. Delius had last seen the bear.24 Dr. Delius immediately checked Mr. Mil-lo’s vital signs and determined that Mr. Millo was dead.25 Dr. Delius fired several shots from his own rifle and Mr. Millo’s [871]*871rifle, and dragged Mr. Millo’s body down the bank to a position he thought better defensible from bears.26 The shots alerted Mr. Galla and the other two clients, who arrived at the scene approximately forty-five minutes later.27 Mr. Galla used his satellite phone to contact the Wrangell Police Department, who arrived at approximately 2:00 a.m.28

The autopsy report prepared by the State Medical Examiner dated June 2, 2010 describes the bullet as having created a blast path through the right ventricle, right atrium, intraventricular septum, and posterior left ventricle of the heart; through the thoracic aorta; through the left lower lobe of the lungs; and through multiple ribs29 The report describes extensive hemorrhaging surrounding the blast path.30 It does not contain an opinion on how long Mr. Millo lived after the shooting. Dr. Delius’ retained medical expert, Dr. Vincent di Maio, reviewed the autopsy report, among other materials, and concluded that “[d]ue to the extreme nature of the internal wounds, [Mr. Millo’s] death would have been instantaneous.”31

Ms. Millo filed the complaint in this action in the Alaska Superior Court, Third Judicial District at Palmer on February 2, 2011 seeking compensatory, special, and punitive damages, as well as costs and attorney’s fees on behalf of herself, Mr. Millo, and their three adult daughters.32 Both parties submitted jury demands.33 Dr. Delius timely removed this action to federal court on March 2, 2011.34 Dr. Delius filed the present Motion for Partial Summary Judgment on January 18, 2012, seeking an order dismissing the punitive damages claim and the survival claim, precluding the characterization of loss of companionship and advice-related services as an economic loss, and excluding the Millos’ three daughters from statutory beneficiary status. He also seeks a determination that the plaintiffs’ non-economic claims are capped at $400,000.

DISCUSSION

I. Jurisdiction

This court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332, as the parties are citizens of different states and the amount in controversy exceeds $75,000. In this diversity action, Alaska law applies to the substantive legal issues, while federal procedures apply.35

II. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The burden of showing the absence of a genuine dispute of material fact lies with the moving party.36 If the [872]*872moving party meets this burden, the non-moving party must present specific factual evidence demonstrating the existence of a genuine issue of fact.37 The non-moving party may not rely on mere allegations or denials.38

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Bluebook (online)
872 F. Supp. 2d 867, 2012 U.S. Dist. LEXIS 65211, 2012 WL 1906552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millo-v-delius-akd-2012.