State appeals jury verdict in Denali Highway deaths

Posted: Tuesday, February 15, 2000

ANCHORAGE (AP) -- The state has appealed a jury verdict that held the state responsible for the deaths three years ago of an Anchorage couple and their 2-year-old grandson who died of exposure after getting stranded on the Denali Highway.

The bodies of Palmer and Leah Olrun and their grandson Ethan were found alongside the highway Jan. 18, 1996. They had run out of gas after getting stuck in snowdrifts on the unmaintained road, then tried to walk for help. Temperatures were well below zero.

In October, a Bethel jury ruled the Olruns made mistakes but held the state 51 percent responsible for their deaths and awarded surviving relatives $7.75 million for pain, suffering and lost wages. Under the decision, the state is responsible for paying 51 percent, $3.9 million.

In the appeal filed Friday, state attorneys argued the case should have never gone forward and that Superior Court Judge Charles Pengilly erred in rejecting arguments that the state cannot be sued over search and rescues.

Search-and-rescue operations, like firefighting, are protected from lawsuits because of the state's ''discretionary function immunity'' clause, assistant attorney general Dave Jones said.

''We agree that part of the function of public safety is to conduct search and rescue,'' he said. ''We disagree whether you can go to court and sue based on those actions.''

But attorneys for the Olruns say troopers had a duty to respond and were negligent in not launching a search when hunters first reported finding the Olruns' abandoned car and a sign for help stamped out in the snow. A search was mounted but not until two days later.

''They're arguing that they can do whatever they want and don't have to answer to anyone,'' attorney Kari Bazzy Garber said. ''As a matter of public policy, as members of the public, should we allow that? I don't think so.''

The Olruns' bodies were found near the McClaren River Lodge about 94 miles from Cantwell. They had walked eight miles through the snow from their Subaru station wagon. The nearest weather station, in Paxson, recorded temperatures as low as 40 below.

The reactions triggered by the case were strong and mixed. Some people blamed the Olruns for putting themselves in a dangerous situation. Others blamed troopers for not responding sooner.

In addition to the state's appeal, Bazzy Garber and co-counsel Don Bauermeister have appealed the judge's decision to reduce the amount of the award.

Pengilly reduced the amount the state is required to pay by a third, making the total $2.5 million instead of $3.9 million. He ruled the cuts were required because of caps the state Legislature placed on how much plaintiffs can recover in such cases.

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