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Miss Cleo’s Apprentice

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 99ยข per minute! For your free reading, have your credit card ready and call 1-900-PSYCLAW now! Legal psychics are standing by!”)

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