Alaska Law Blog

Sometimes you just have to scratch your head. What the heck are these guys thinking? Don’t they realize that they are taking up sides against Alaska children? I always figure that the kids at least deserve the benefit of the doubt under the law, no matter how immature they act. After all, they are immature. Financially strong outfits like liquor stores and those who stand behind them don’t really need that same advantage.

In Sowinski v. Walker, the Alaska Supreme Court picked the liquor store over the children. The decision came out on New Year’s Eve, one of the biggest days of the year for selling and consuming booze. But why in the world the Supreme Court ruled the way it did has me completely stumped.

The facts of Sowinski are sad but not surprising. Back in June of 1996, two 17 year old boys from Palmer, Alaska bought some booze from the DelRois Liquor Store. The liquor store, of course, was not supposed to sell alcohol to minors. Once it did so, the boys did something predictably boneheaded. They partied into the wee hours (it was just past the summer solstice) and then jumped on an ATV, taking a girl along for the ride. They roared off down an access road alongside the Knik River. The ATV ran into a cable that a nearby property owner had strung up to try to keep trespassers out. You can imagine what happened when three kids on a speeding ATV got clotheslined by a steel cable across the road. The two boys were killed and the girl was severely injured.

The families of the two boys sued a bunch of people, including the owners of the DelRois Liquor Store. The liquor store’s dram shop liability was clear under established Alaska law. According to the Alaska Supreme Court decision in Loeb v. Rasmussen, the liquor store could not reduce its own liability by the comparative fault of the underage drinkers. The three justice majority in Loeb followed a long, long line of cases saying that when a statute is meant to protect a particular group of people (here, minors), you can’t hold those people accountable for complicity in the violation of the law. The fault rests with the violator, which in Loeb was the liquor store that unlawfully sold the booze to begin with.

In spite of the Loeb case and the sound reasoning behind it that stretches back probably a couple of centuries, a three justice majority in Sowinski said that this rule no longer applied. The Sowinski majority concluded that Alaska’s subsequent embrace of pure several liability in the tort reform legislation meant the liquor store, which was legally obligated to know better, could shove off some of the liability onto the stupid kids. The fact that the liquor store was supposed to protect the children from their own stupidity cut no ice at all with the majority.

Chief Justice Fabe's dissenting opinion (a model of restraint) showed that the case did not have to come out this way. As the Chief Justice said, the majority entirely failed to address whether “more good than harm would result” from their decision doing away with Loeb. The public policy against underage drinking is an exceptionally strong one. Indeed, the public policy of protecting children in general runs up and down the length and breadth of Alaska law. A huge portion of the resources of this State are all devoted to trying to protect and promote the health and safety of Alaska’s children. At the same time, Alaska law closely regulates the franchisees to whom the State of Alaska itself has given the extraordinary privilege of selling alcohol. Transgressions that would not have much of an adverse effect on an ordinary business are enough to get a grog shop’s ticket pulled. So why would Alaskans ever believe that the public good was best served by letting a liquor seller point the finger at the kids when the liquor seller violates its legal obligations?

I have hunted through the tort reform statute. I found nothing that says pure several liability trumps all other public policy considerations. In fact, there is a sentence in the statutory definition of “fault” (AS 09.17.900) that says: “Legal requirements of casual relation apply both to fault as the basis for liability and to contributory fault.” Well, as recognized in Loeb, the established law was that a child’s purchase and consumption of alcohol did not meet the “legal requirements of casual relation” for purposes of “contributory fault.” Instead, the “casual relation” was all attributed to the liquor store that illegally sold the demon rum at the get-go.

So it's not hard to find room in tort reform statute to continue to protect Alaska’s kids over the liquor industry. And basic public policy must require the same. All of which leaves me scratching my head as to how the majority in Sowinski came out the other way around.

I saw my first ghost bike in Anchorage this morning. It was a somber shock for a Friday morning commute.

The ghost was leaning against a sign, in the median strip of C Street, at the intersection with 40th. It was a true apparition. The headlights from the passing traffic swept across it in the morning dark. The stark white bicycle gleamed back at the motorists, standing as a silent witness to the transgression of one of them.

I’m not sure how many folks in Anchorage know what a ghost bike is. A ghost bike appears at the location where a bicyclist has been killed or seriously injured. According to ghostbikes.org, ghost bikes first began to be seen in St. Louis in 2003. They are memorials to a life that has been lost or damaged, and they are protests against the sometimes terrible dominance of the internal combustion engine. Their numbers have been increasing across the country and now the world. But I’ve never seen one in Alaska. That is, not until today.

This particular ghost has appeared for a young man who is no longer riding his bicycle among us. On the morning of October 20, 2008, 19-year-old Jonathan Johnson was riding across C Street at 40th when an SUV struck him. He was seriously injured in the accident and died from his injuries a few days later.

I did not know Jonathan Johnson. But during my drive to work on October 20, I saw the accident scene. The police and paramedics were still in the intersection when I drove by that day. The flashing lights of the emergency vehicles raked through the dark. Traffic was completely stopped in the southbound lane of C Street; it was crawling in the northbound lane.

I did not know Jonathan Johnson. So I cannot tell you what the aftermath of his accident and death will be. There may be legal issues to sort out, such as liability questions, insurance issues, etc. I'm not sure. The Anchorage Daily News reported that the police did not cite the driver of the SUV in the accident.

I did not know Jonathan Johnson. But I ride the same bike routes he did. When I can squeeze a bike commute in, I ride the bike trail along C Street to my office downtown, summer and winter alike. For all I know, I could have passed Jonathan Johnson going the other way on the bike trail one day as I was making my way to work. I have a connection to Jonathan Johnson because I know that what happened to him could also happen to any other bike commuter, myself included.

I did not know Jonathan Johnson. But I know what it is like to ride bikes in Anchorage. There was a recent article in the paper about Anchorage being called a “bike friendly” city. The author of the article did not agree with that characterization, saying Anchorage was a "city with no shortage of dangerous places to ride." I also think that calling Anchorage a “bike friendly” city is a dubious description, although I can say that it is a whole lot friendlier to bikes than it used to be.

I did not know Jonathan Johnson. But I drive the streets of Anchorage the same as the young woman who ran her SUV into him. I know the challenge of coming upon a bicyclist in the dark when you are not keeping an eye out for one. After Jonathan’s accident, the Bicycle Commuters of Anchorage posted a notice on their website reminding cyclists to use lights and reflectors for winter rides.

I did not know Jonathan Johnson. But I feel sympathy for his family. A life cut short at 19 years of age is a thing impossible to ever fully accept.

I did not know Jonathan Johnson. But I am a fellow citizen and cyclist of Anchorage. I can feel his passing, and I am sad there is one less cyclist in my city.

I did not know Jonathan Johnson. But I know the ghost that stands for him now.

I hate to be one of those guys who says “I told you so!” So as I read the latest opinions from the Alaska Supreme Court, I started sweating. Then my mouth hung open. Just before my jaw hit the desk, I exclaimed: “Holy white socks ‘neath black robes, Batman! I was right!”

You see, I recently wrote about the Alaska Supreme Court’s decision in Edenshaw v. Safeway, Inc. I boldly predicted Edenshaw would be distinguished away into near oblivion. Well, the distinguishing away has slyly begun. The Alaska Supreme Court just ruled this past Friday that no jury question is presented in a premises liability case unless there is at least some minimally adequate proof of negligence. This undercuts the broad language of Edenshaw, which said exactly the opposite.

The case just decided is Burnett v. Covell. Mr. Burnett reportedly weighed about 330 pounds. He visited Ken Covell's office to attend a meeting. Ken Covell is a Fairbanks lawyer. (I met Ken hiking the Chilkoot Trail this summer.) Mr. Burnett had visited Ken’s office previously without problem. But on this occasion the chair Mr. Burnett attempted to sit in collapsed underneath him. Mr. Burnett sued Ken for his injuries. (Egad, a lawyer being sued!?)

One of Mr. Burnett’s theories was negligence. Ken defended himself by saying that he had no knowledge there was anything wrong with the furniture in his office. Mr. Burnett’s attorney conceded that this was undoubtedly true. Nonetheless, the Alaska Supreme Court said it did not matter. Prior notice or knowledge of the defective condition of the premises was not required, according to the Court. This statement at least was consistent with Edenshaw.

The Court went on to say, however, that the plaintiff had to provide some sort of specific evidence to raise a jury question as to negligence. “In the absence of such concrete evidence,” the Court stated, “Burnett’s unsupported assertions” about what Ken might have done differently to ensure the safe condition of his furniture were not enough to present a jury question. The Court reached this conclusion even though in Edenshaw it said in nearly the same situation that the matter should be given to the jury. The exact language of Edenshaw was: “we continue to trust that factfinders can best ascertain whether the proprietor of a grocery store acted reasonably in maintaining the store’s premises considering all of the circumstances.”

The Court in Burnett made only one reference to Edenshaw. That came in a footnote at the end. The footnote explained nothing about how the decision in Burnett could be squared with Edenshaw. The fact that Justice Carpeneti authored both opinions a little over one month apart would make one think he had Edenshaw in mind when Burnett was decided. Still, no attempt at reconciling the two was made.

In light of Burnett, I think the conclusion is inescapable that the plain words of Edenshaw cannot be taken at face value. Whatever the opinion in Edenshaw actually says, the only logical way to read Edenshaw after Burnett is exactly what I wrote back in July:

The Court's Edenshaw decision only makes sense if you assume they really meant to say advance notice of a dangerous condition is not the only way to prove negligence; a myriad of other ways are permitted. Nevertheless, some sort of minimally adequate proof of negligence still has to be provided to get to the jury (reasonable minds differing and all that). The trial judge can be asked to verify this through a summary judgment or directed verdict motion. I have to admit, though, that the Edenshaw opinion does not come close to expressly stating this. But in my view this is what the opinion should have said.

The Court in Burnett sidestepped the broad language of Edenshaw and did exactly what I said it should do. So, there! I told you so!

(I might have to join up with Miss Cleo and start charging you people for predicting the future. “Get a free reading of the legal future for only 99¢ per minute! For your free reading, have your credit card ready and call 1-900-PSYCLAW now! Legal psychics are standing by!”)

Like most everyone else, the lawyers here at Atkinson, Conway & Gagnon have been watching the Olympics. For some reason, the games have made me think of defamation law. All of those finely honed athletes are doing astonishing things for the glory of sport. But there is an awful lot of criticism that seems to go with the territory.

Take Uberswimmer Michael Phelps for instance. The unkind bloggers out there are zinging the big lug for his supposed lack of fashion sense. They ask (and affirmatively answer) the question: “Is Michael Phelps a douche?"

So what sort of a comment is defamatory anyway? The Restatement of Torts says that a communication is defamatory “if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” (Say what?) I think that in the English language this means a statement is defamatory if it exposes the person to hatred, ridicule or contempt in the community. If the statement is written down its called libel. When its stated orally, its just slander. (If its written down and stated orally, then I guess you can call it whatever you want. Like maybe libelous slanderific bladderdash or perhaps slanderous libelicious poopycock.)

The law on defamation is a patchwork construct. The rules that apply are Byzantine and bizarre. Consider this: who gets the first cut on saying whether calling Michael Phelps a douche exposes him to hatred, ridicule or contempt in the community? Do we take a poll of community members to figure out if they think less of Phelps because of the comment? No, we do not. Instead, the law entrusts this critical decision to the one person who is probably least qualified to make it. This is a person who is by necessity out of touch with the rest of society, isolated in an ethical tower of solitude. And its a person extremely unlikely to know what passes for fashion amongst the i-generation. That’s right, the trial court judge is the one who makes the frontline decision.

(You might be inclined to ask: Did this joker just defame the trial court judges? Rest assured that I did not. You see, I can poke fun at the trial court judges as a group all that I want and I will not face any liability for defamation. To be defamatory, a comment about a group has to be reasonably understood as being directed a particular member of a group. And when it comes to each one of the particular members of the trial court bench, my view is that each is an intelligent, hard-working public servant who gets nowhere near enough appreciation or reward for the vital work he or she is doing.)

Bringing a defamation lawsuit is almost never a good idea. (Just ask Oscar Wilde or General William Westmoreland.) Defamation claims are subject to a number of unique defenses and the damages that can be proven are usually very limited. It used to be that the law allowed damages to be presumed, but this only occurred when it was a slander per se, or in some states, a libel per se but not a libel per quod. (To make matters worse, a libel per se was strangely something different than a slander per se put into writing. ) The U.S. Supreme Court got involved, though, and stirred up the pot by saying presumed damages are generally not permitted. See what I mean, defamation is a jury-rigged mess.

And, you have to determine whether the person supposedly defamed is a public figure or not. Because of a little technicality, which is commonly known as the First Amendment to the Constitution, public figures have to have thicker skins than the rest of us. So I’m on safe ground when I say: “George W. Bush did not fill out his beach volleyball bikini very well at the Olympics.”

And, thank heavens, satire and opinion are not defamatory. This means the folks at The Spoof! can get away with using the headline: "Chinese Olympic Gymnasts Really Third Trimester Fetuses, Claims IOC". And the guys at The Onion can say that the Chinese have been doctoring public perception during the Olympics by having "cotton balls glued into sickly pandas' bald spots." (Hey, actual humor is not the test. Whether or not you think its funny, its still not defamatory.)

So is it defamatory to call Michael Phelps a douche? Well, he’s a public figure for sure now. And, no one is really going to believe that he is a hygienic rubber bag in the literal sense. So the statement is really one of opinion when you examine it. Given those considerations, I don’t think Michael has a good defamation claim. At least, I wouldn’t bother bringing it on his behalf.

Besides, truth is an absolute defense in defamation cases. Which is why I can say with impunity that: “In my opinion, gymnast Shawn Johnson resembles Gadget, the brainy cartoon mouse from Rescue Rangers.”

People complain about the snail’s pace of civil litigation. It takes a minimum of a year for almost any case to get to trial. Bigger and more complex cases take even longer.

If you ask around, you find that many civil litigation lawyers blame the delay on all the family law cases. The trial courts are clogged with divorce, child custody, division of marital property, domestic violence, and child in need of aid proceedings. The judges spend so much time refereeing for all these angry people who for one reason or another can’t run their own lives that they have no time to deal with the “regular” civil lawsuits. (You know, the really important “regular” civil cases, like the ones involving a slip and fall in a grocery store, or a State of Alaska employee who is unfairly disciplined for being an impossible jerk who won’t do any real work.)

It used to be that the Anchorage Superior Court had one particular judge assigned to handle the family law cases. But that practice was never actually authorized by statute so it was abandoned a while back. Now, all the Superior Court judges on the civil side get a slice of the family law cases, whether they want them or not. The civil judges have to juggle all these prickly family law disputes where emotions run high with their “regular” caseload where usually only something unimportant like millions of dollars are at stake.

Some have suggested that Alaska set up its own family law court to handle these cases, as other states have done. But I’ve got another idea. (Notice, I did not say a better idea.) I think the State ought to set up a Judge Judy type program on cable TV. The State could hire some shrill or half-insane retired judge to act as the star of the show. (A few candidates come to mind.) And give the family law litigants the option of volunteering to submit their dispute to a TV judge rather than a real one. No doubt this will clear out a bunch of cases because I bet any number of star-struck dillweeds would jump at the chance to be on TV.

Of course, you would need a savvy TV production person to screen the cases. You would want to televise only the really juicy ones. Like ones involving infidelity, custody disputes over pets, or the misuse of duct tape. (“I tell you, your honor, since he didn’t pay child support, I had to restrain the kids and feed them bowls of paint chips for dinner!”) With good case screening, the State would have a hit TV show on its hands. It could even make some money from all the advertisers wanting to sponsor the show. (“The Alaska Justice Show, brought to you by your friends at VECO Corporation.”)

I have to admit that I question whether the family law TV show would really speed up the pace of “regular” civil litigation much. The civil litigation process, with all that discovery and whatnot, just takes awhile. Besides, you need to give the hard-working lawyers in those cases enough time to earn their fees. But at least the Alaska Justice Show will keep us entertained while waiting for our "regular" civil cases to come up on the docket.

Chris Slottee, my esteemed colleague here at Atkinson, Conway & Gagnon, has already reported on the Alaska Supreme Court’s recent decision in Edenshaw v. Safeway, Inc. Chris’ blog post calmly notes that the decision may impose greater liability on property owners than was previously the case. I think that Chris has vastly understated the significance of the decision. This new decision totally knocks out one of the bulwarks of established tort law. I mean, what the heck happened to the Gritty Banana Peel Doctrine?

When I was in law school (back in the far, far recesses of the last century), they taught us fledgling lawyers that negligence was not the equivalent of strict liability. To be negligent and liable for someone’s injuries, you had to do something wrong. More specifically, you had fail to act in the manner that a reasonable person would have acted. Negligence law, good old Professor Dente said, accounted for the fact that BAD STUFF HAPPENS. Sometimes, its nobody’s fault and the plaintiff just has to take it in the shorts. (I'm paraphrasing the professor's comments here.)

This principle of negligence law meant that just because a guy injures himself by falling down in a grocery store does not mean the store owner is liable. If the guy slipped on a banana peel, the store owner is not responsible unless the owner should have cleaned the thing up. So if the banana peel is a fresh one that was not previously tromped upon, it indicates the damn thing just fell on the floor and the store owner can’t be expected to have known about it or to have picked it up. But if the banana peel is all nasty from being on the floor for awhile this demonstrates a reasonable property owner had time to discover the peel and pick it up. This is the Gritty Banana Peel Doctrine.

You probably think I’m making this up. I'm not. In my first-year casebook on Torts from 1977, there were two cases on banana peels. In Anjou v. Boston Elevated Ry. Co., 94 N.E. 386 (Mass. 1911) the plaintiff won because she provided proof of negligence. The banana peel she slipped on “felt dry, gritty, as if there were dirt upon it,” and it was “black, flattened out and gritty.” But in Joye v. Great Atlantic and Pacific Tea Co., 405 F.2d 464 (4th Cir. 1968) the plaintiff lost because there was no proof of negligence. “Plaintiff offered no direct evidence below as to how long the banana had been on the floor before the accident . . . the jury could not tell whether the banana had been on defendant’s floor for 30 seconds or 3 days.” (My Torts book also had a case about pizza on the floor, but to avoid confusing myself or anyone else I want to stick to one kind of food.)

The Alaska Supreme Court in Edenshaw threw the Gritty Banana Peel Doctrine into the dumpster. The Court said a plaintiff can maintain a negligence action without specific evidence showing that the property owner knew or should have known of the dangerous condition. The Court also did not pin the property owner's liability to him doing anything else in particular wrong (like stacking up the bananas in a faulty manner in the first place). In essence, the Court decided to entirely punt the question of sufficient proof of negligence to the jury. The plaintiff does not have to show the property owner did anything specifically wrong in order to roll the dice with the jury.

Under Edenshaw, it presumably will be enough for the plaintiff to show that he went into the defendant’s store, encountered a patch of gravity there, fell down and hurt himself. The poor trial court judge can only shrug her shoulders, hand the thing off to the jurors, and let them retreat to the back room to make sausage with it.

Many years ago the Alaska Supreme Court eliminated the old common law rules that had been developed in so-called premises liability cases. Those old rules had different standards depending on whether the plaintiff was classified as a trespasser, or a licensee, or an invitee. Since it was often hard to tell who was exactly what type of person, and since feudal law designed to protect landowners at all costs had fallen out of fashion, the Court chucked out these rules in favor of a plain reasonable care standard that applied to everyone. This change in the old rules was brilliant, visionary, super keen. It made life easier for everyone. But junking the Gritty Banana Peel Doctrine and cutting these cases free from any sort of objective proof standard? That’s just goofy.

I predict that Edenshaw will be distinguished into near oblivion as future cases are decided. (Write that down, folks, and remember that you heard it here first.)

The Court's Edenshaw decision only makes sense if you assume they really meant to say advance notice of a dangerous condition is not the only way to prove negligence; a myriad of other ways are permitted. Nevertheless, some sort of minimally adequate proof of negligence still has to be provided to get to the jury (reasonable minds differing and all that). The trial judge can be asked to verify this through a summary judgment or directed verdict motion. I have to admit, though, that the Edenshaw opinion does not come close to expressly stating this. But in my view this is what the opinion should have said.

Well, after a few months of having other things to occupy my time, namely these darling three month olds (Isaac & Aaden), it is time for me to renew Atkinson Conway & Gagnon’s attempt to, ahem, timely summarize the Alaska Supreme Court decisions of the week.

First up is Pebble Limited Partnership v. Parnell, S-13059/S-13060, in which the Alaska Supreme Court rejected an attempt to remove an initiative from the November ballot that will impose new requirements on mining in Alaska. The opinion has no real reasoning, as it’s actually an order with an opinion to follow, issued so that the State has time to print ballots for the election this fall. I won’t go into the arguments regarding the merits of the underlying mining initiative, but if you listen to the radio or watch TV for five minutes, you are almost sure to see ads from both sides of the issue.

The only other opinion of real interest is Edenshaw v. Safeway, Inc., S-12583, in which the Alaska Supreme Court held that to prevail on a premises liability claim in Alaska, a plaintiff does not need to show that the business owner had actual or constructive knowledge of the dangerous condition. Instead, the Court held there was only a basic reasonableness test, in which the business owner’s notice of a dangerous condition was a factor to consider, but not a dispositive or required one. This case is a departure from prior cases in which the Alaska Supreme Court held that the State of Alaska had to have actual or constructive knowledge of a defect in a highway to be liable if that defect caused an injury. In Edenshaw, the Court distinguished these prior cases by noting that a grocery store (which was where the injury occurred in Edenshaw) is a much more tightly controlled area, and thus it was more reasonable to impose a general duty of care on the business owner regardless of whether the business owner had actual or constructive knowledge of a dangerous condition on the property.

This opinion will have a significant effect in future litigation, as business owner now can be exposed to liability for injuries caused by dangerous conditions of which they were both not aware and had no reason to be aware. It is also certain to make premises liability cases more expensive and difficult to defend, as the question of the reasonableness of an owner’s actions will almost always be a fact question. Consequently, now that a business owner cannot rely on a lack of notice, constructive or actual, to avoid liability as a matter of law, it will be very difficult to obtain summary judgment or resolution of a premises liability case short of actual trial.

The Alaska Supreme Court issued two new opinions today. Moore v. Peak Oilfield Service Co. reaffirmed prior Alaska Supreme Court case law that a defendant in a civil personal injury lawsuit who is convicted of driving while intoxicated must be found to have acted negligently and reckless as a matter of law. The Court further clarified that such a ruling did not preclude the defendant driver from arguing that his or her negligence/recklessness was not a legal cause of the plaintiff's injury.

In Amerada Hess Pipeline Corp. v. Regulatory Commission of Alaska, the Alaska Supreme Court affirmed the Superior Court's finding that shipping rates charged by the owners of the Trans-Alaska Pipeline were unreasonable and unjust from 1997 to 2007 and that refunds must be given. The Alaska Supreme Court did not address the issues raised by the pipeline owners, but incorporated by reference the Superior Court's 44 page opinion.

Atkinson Conway & Gagnon and all Alaskans are carefully watching the litigation arising out of the Exxon Valdez oil spill. After more than eighteen years, the case is still active. In late 2006, the Ninth Circuit affirmed a $2.5 billion punitive damage award against Exxon. With interest, the total punitive damage award against Exxon is estimated to be in excess of $4.5 billion. As expected, Exxon has appealed this decision to the United States Supreme Court.

The primary focus of Exxon’s appeal is the argument that punitive damages were not available under traditional maritime principles. Exxon is not seeking to just reduce the punitive damage award, but eliminate it entirely. The United States Supreme Court has a short summary of the issues it will be deciding.

Oral argument before the United States Supreme Court is scheduled for Wednesday, February 27, 2008. Below are links to the Supreme Court briefs that have been filed, including amicus briefs. Whatever the Supreme Court’s decision, it is certain that all Alaskans will be closely following this case and that it will have substantial impacts on both Alaskans and the law governing the availability punitive damages.

Primary briefs

Exxon's Appeal Brief

Plaintiff's Appeal Brief

Amicus Briefs

In support of Exxon

Chamber of Commerce amicus brief

Transport and Shipowners amicus brief

American Petroleum Institute amicus brief

Washington Legal Foundation amicus brief

Product Liability Advisory Council amicus brief

In support of Plaintiffs

Alaska Legislative Council Amicus Brief

Senator Stevens, Senator Murkowski, and Representative Young's amicus brief