Articles Posted in Injury Claims

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I was commuting to work on the Chester Creek bike trail last week when a guy on a sharp looking red bike passed going the other way. Now passing other cyclists is nothing out of the ordinary. But this guy was riding a fixed gear bike, just as I was. We recognized our common bond at the last possible moment, exchanging sidelong glances.

Fixies are all over the West Coast and the urban fixed gear trend is nothing new. Yet in Anchorage — out here on the far reaches of the Empire beyond even the Dagobah System — you just don’t see that many fixies. I’d guess that maybe you could find a few dozen or so if you scoured through all the alleys of Spenard and looked behind the dumpsters in the U-Med District. (I’m not including the singlespeed jobs that aren’t fixed.)

JerryJuday-3.jpgYes, I know fixed gear bikes involve a learning curve for handling the inertia challenge. You have to actually think while riding a fixed gear, planning ahead for the next intersection or hill or obstacle. You have to remember there ain’t no coasting on a fixie and stopping one that is up to speed requires at least a modicum of skill. Most of the uninitiated, I suppose, view fixies as dangerous and utterly lacking in social utility, like the lawn darts of the cycling world.

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Smarter fellows than I have observed that the rules of evidence are a systematic effort to keep the truth from seeping into the courtroom. As one of the authors of the Notable British Trials series observed way back in 1933, the “law of evidence has been built up by generations of judges distrustful of the capacity of juries.” The evidence rules are the law’s way of saying that the trial judge is the only one in the courtroom with a lick of common sense.

Obviously this thesis overstates things a smidge. But I fear that the Alaska Supreme Court’s recent decision in Mueller v. Buscemi demonstrates that there is actually something to this view. (And, yes, I admit that I only read the opinion because I thought it might involve wacky Steve Buscemi or the Coen Brothers. Sadly, it does not and the entertainment value of the decision is vastly reduced.)

The Mueller case involved a simple slip and fall in a parking lot outside a commercial building. (Warning: Gravity In The Area!) The plaintiff rolled snake eyes in front of the jury on her claim against the building owner. The plaintiff blamed the adverse outcome on the trial judge not allowing in evidence of other accidents. Specifically, the trial court kept the plaintiff from giving the jury evidence that a pregnant woman fell in front of the building two weeks before the plaintiff’s accident; that on the same day as the plaintiff’s accident another woman complained about falling in front of the building; and that on the same day as the plaintiff’s accident, a guy fell and hurt his knee in front of the building.

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In a recent decision, Mat-Su Regional Medical Center, LLC v. Burkhead, the Alaska Supreme Court held that a patient could not assign their personal injury claim for recovery of her medical expenses to her health-care provider.

In Burkhead, a patient received medical services at a hospital after an automobile accident. During her treatment, she signed two “Consent: Authorization, Assignment, and Acknowledgment” forms in which she ostensibly assigned to the hospital “all rights to or claims for payment against third parties” for the reasonable value of medical services rendered. The hospital subsequently attempted to intervene in the patient’s personal injury lawsuit and filed its own suit against the tortfeasor. In both cases, the hospital sought to recover the expenses it incurred in treating the patient from the tortfeasor directly and pursuant to the patient’s purported assignment.

The Alaska Supreme Court held that the patient’s purported assignment of her personal injury claim to the hospital was not valid. The court explained that

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Sometimes you just have to scratch your head. What the heck are these guys thinking? 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 Court ruled the way it did has me stumped.

itch.jpgThe 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.

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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.

Picture%20003.jpgI’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, 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.

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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!?)

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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.)

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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.

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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.)

falling_man.jpgThis 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.

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Well, after a few months of having other things to occupy my time, namely these darling three month olds (Isaac & Aaden), IMG_0527.jpg 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.