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Shade v. Anglo Alaska Service Corp. (9/8/95), 901 P 2d 434
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, telephone (907) 264-0607, fax (907) 276-
THE SUPREME COURT OF THE STATE OF ALASKA
HARVEY SHADE and ANNA SHADE, )
) Supreme Court No. S-6605
) Superior Court No.
) 3AN-93-6438 Civil
) O P I N I O N
CO & ANGLO ALASKA SERVICE )
CORP., d/b/a PEAK OILFIELD ) [No. 4253 - September 8, 1995]
SERVICES, and PEAK ALASKA )
VENTURES, INC., d/b/a PEAK )
MAINTENANCE AND EQUIPMENT CO.,)
and GROVE MANUFACTURING CO., )
d/b/a GROVE MANLIFT, )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
John Reese, Judge.
Appearances: Charles W. Coe, Anchorage, for
Appellants. Alex K.M. Vasauskas and Timothy
M. Stone, Stone, Waller, Jenicek, Brown &
Gibbs, Anchorage, for Appellees Peak Oilfield
Services and Peak Alaska Ventures, Inc.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, and Compton, Justices. [Eastaugh,
Justice, not participating].
MOORE, Chief Justice.
Harvey Shade alleges that he was injured when a manlift
that he was operating during his employment with ARCO Alaska
unexpectedly shifted into high speed. Shade and his wife Anna
sued Grove Manufacturing Company d/b/a Grove Manlift (Grove), the
manufacturer of the manlift, and Peak Oilfield Services and Peak
Alaska Ventures, Inc. d/b/a Peak Maintenance and Equipment
Company (Peak), an independent contractor hired to maintain
ARCO's manlifts, for negligent repair, breach of implied warranty
of repair, products liability, and loss of consortium. The trial
court entered summary judgment in favor of Peak, dismissing the
Shades' complaint against the contractor in its entirety. The
Shades challenge this decision, as well as a subsequent award of
attorney's fees. Because we conclude that the summary judgment
dismissal of Peak was improper, we reverse.
II. FACTS AND PROCEEDINGS
For purposes of this summary judgment motion, the
following facts are undisputed. Harvey Shade worked as a heavy
equipment mechanic for approximately twenty years, during which
time he repaired and maintained manlifts for ARCO, including
those manufactured by Grove. In 1988 ARCO closed down the
mechanic's shop where Shade worked and contracted the repair and
maintenance of its heavy equipment to Peak. Shade was reassigned
as a heavy equipment operator, which required the delivery of
heavy equipment to work sites for use by ARCO personnel.
On September 17, 1988, Shade's superior directed him to
pick up a Grove manlift and deliver it to a remote work site.
Shade picked up a Grove manlift referred to as the "PB 1470."
Before attempting to load the manlift for transport, Shade
inspected it. He noticed no red tags which would indicate that
the equipment was not functional. He also performed an
operational test of the manlift, in which he did a "walk around,"
listened to the engine, and operated the controls from the
basket. Shade specifically did an operational test of all of the
switches, including the high/low speed switch. The operational
test performed by Shade was designed to check a specific safety
feature: with the basket raised, the operator should be unable
to place the Grove manlift into high gear.
When Shade later attempted to unload the manlift at the
work site, however, it apparently malfunctioned. Shade was
backing off a tilt trailer with the throttle in low gear and the
basket raised. When Shade was halfway down the ramp, the engine
suddenly shifted into high gear by itself and threw him into the
air. As a result, Shade broke his ankle and leg.
The Shades brought suit against Grove and Peak in July
1993. The complaint alleged that under Peak's contract with
ARCO, Peak was required to repair, maintain, monitor, and inspect
the heavy equipment which Shade used. The Shades asserted that
the injuries suffered by Shade were proximately caused by Peak's
negligence in failing to properly repair the manlift, as well as
Peak's breaches of both the contract to repair and an implied
warranty of workmanship.
Peak moved for summary judgment. In support, Peak
presented Harvey Shade's deposition testimony, in which he
described inspecting the Grove manlift before using it on
September 17 and observing no malfunction with the speed control
switch. Peak also attached the affidavit of Don York, a Peak
mechanic who went to the scene shortly following the accident to
examine the manlift. York affied that he operated the manlift in
all of its functions, "including the manlift's high and low speed
mode," and found no indication of any malfunction. York further
stated that the lift appeared to operate normally when it was
loaded back onto the trailer and off-loaded at the shop, and that
after additional inspection in the shop, he determined that the
speed mode switch was operating in proper condition. Based upon
this evidence, Peak argued that the manlift was functioning
properly before and after the accident and, even if there were a
defect, that "Peak could not have been reasonably expected to
discover that there was anything malfunctioning with the manlift
before Mr. Shade . . . was injured."
In opposition, the Shades first attempted to
characterize the location where Shade picked up the manlift on
September 17 as an implied certification by Peak that the manlift
was safe to operate. Shade and another operator, Parnell
Lockhart, affied that the PB 1470 had been placed on the "ready
line" that day, an area where mechanics routinely placed
completely repaired and inspected equipment after it had been
The Shades also submitted a Peak repair report for the
PB 1470 dated September 17, 1988. At the top of the report next
to a space marked "Problem" was written, "Travel & eng[ine]
controls touchy." Below, York indicated that he "[checked] out
[the] operation of control for travel." As a result, four
switches were ordered.1 Next to the repair entry was the
indication "0900," which York later explained is a
"miscellaneous" task code -- not an indication for 9:00 a.m.
York testified that he recalled performing this particular repair
late in the afternoon on September 17, after the accident.
However, York admitted that based upon the work order itself, one
cannot determine what time of day the repair was performed.
The Shades also submitted evidence of some difficulty
that Shade experienced on the day of the accident while initially
loading the PB 1470 manlift onto the tilt trailer for transport.
Shade explained that as was required for loading and unloading,
he had the manlift in low gear with the basket raised. Shade
testified that once all four wheels were on the tilt, the manlift
was unable to climb. Shade stated that it was necessary to have
Lockhart raise the rear of the manlift with a forklift so that
Shade could drive straight onto the trailer. Shade affied that
although the manlift was not switching gears at that time, the PB
1470 "was not moving right."
Finally, the Shades attempted to directly link Peak's
repairwork to the malfunction that allegedly caused Shade's
injury. Shade testified that in his opinion, the manlift shifted
into high gear due to "a malfunction in the wiring." He
explained that Peak could have detected a defect such as this
before the accident by performing an operational test, or by
opening up the machine. Shade stated that inside the machine,
Peak should have been able to discover cracks in the wiring or
wires touching, or Peak could have used a continuity tester to
learn if any leads were grounded to the speed control switch.
Lockhart, who had ten years of experience as a heavy
equipment operator, provided additional information. He
testified that prior to and after Shade's accident, employees
discussed "ongoing" problems with manlifts shifting from low to
high gear unexpectedly. Lockhart stated that he personally
experienced a sudden change in speed on at least two or three
occasions, and that when the speed change occurred, the lift
became unstable and felt like a "teeter-totter." Lockhart stated
that the most recent time that he experienced an unexpected speed
change was three weeks to six months before Shade's accident.
Although he could not recall whose mechanics were then manning
the shop, he testified that at that time, ARCO had gotten rid of
all of its own mechanics. Lockhart recalled that on that
occasion, as he did every time that he experienced a problem with
a piece of equipment, he wrote up the problem and turned it in to
the dispatcher. Lockhart explained that employees were required
to document problems with machines, and that afterwards, the
dispatcher would turn the forms over to the mechanic's shop.
After reviewing the evidence, the trial court granted
summary judgment in favor of Peak. The court noted that while
the jury has significant latitude in making a finding of
negligence, in the present case, it would be necessary for the
jury to "speculate" in order to find a connection between Peak's
conduct and Shade's injury.
The Shades moved unsuccessfully for reconsideration,
and the trial court certified the judgment as final. The clerk
awarded Peak costs, and the trial court awarded Peak 20% of its
This appeal followed.
This appeal allows us to revisit some of the important
principles underlying Alaska Civil Rule 56 and the law of summary
judgment. As Peak frames the question presented by this case,
"[t]he determinative issue . . . does not involve the question of
whether or not the manlift malfunctioned . . . . In order to
avoid summary judgment dismissal, [the] Shades were obligated to
present some admissible, material evidence demonstrating that
Peak's negligence proximately caused Mr. Shade's injury." The
trial court impliedly agreed with Peak's characterization of the
purpose of these proceedings, and it ultimately concluded that
the Shades had not carried their evidentiary burden. We believe
that the trial court's assessment of the Shades' evidence was
premature, and we therefore reverse.
It is well settled that when reviewing a grant of
summary judgment, we must determine whether a genuine issue of
material fact exists and whether the moving party is entitled to
judgment as a matter of law. Broderick v. King's Way Assembly of
God Church, 808 P.2d 1211, 1215 (Alaska 1991). Because a
premature grant of summary judgment forecloses a litigant's right
to trial, however, we must be mindful that both on appeal and at
the trial level, it is the moving party that bears the initial
burden of proving, through admissible evidence, the absence of
genuine factual disputes and its entitlement to judgment. Id.;
Williams v. Municipality of Anchorage, 633 P.2d 248, 250 (Alaska
1981) ("[T]he party seeking summary judgment 'has the entire
burden of proving that his opponent's case has no merit.'")
(quoting Nizinski v. Golden Valley Elec. Ass'n, 509 P.2d 280, 283
(Alaska 1973)). The non-moving party is given the benefit of all
reasonable inferences which can be drawn from the proffered
evidence. Deal v. Kearney, 851 P.2d 1353, 1361 (Alaska 1993).
Moreover, although prudent counsel for the non-moving party will
always attempt to demonstrate a genuine issue for trial, it is
not obligated to do so until the moving party makes a prima facie
showing of its entitlement to judgment on established facts.
Alaska R. Civ. P. 56(c), (e); Broderick, 808 P.2d at 1215; Weaver
Bros., Inc. v. Chappel, 684 P.2d 123, 126 (Alaska 1984) (holding
that when movant does not satisfy initial burden, non-moving
party need not present opposing evidence and summary judgment
must be denied); 10A Charles A. Wright, Arthur R. Miller & Mary
K. Kane, Federal Practice and Procedure ' 2727, at 143-46 (1983)
(noting that under parallel federal rule, burden of production
shifts to opposing party only when movant "makes out a prima
facie case that would entitle him to a directed verdict if
uncontroverted at trial").
In their complaint, the Shades allege that Peak failed
to properly "repair, maintain, monitor, and inspect" the PB 1470
manlift, and in doing so, acted negligently and/or in violation
of the express or implied terms of its contract with ARCO. Both
parties cite Alvey v. Pioneer Oilfield Services, 648 P.2d 599
(Alaska 1982), for the elements of the Shades' claim against
Peak. In Alvey we stated that in a negligence action, summary
judgment is inappropriate when there is a genuine issue for trial
concerning whether (1) the defendant owed the plaintiff a duty
of care; (2) the defendant breached its duty; (3) the plaintiff
was injured; and (4) the injury was proximately caused by the
defendant's breach.2 Id. at 600. Thus, in the absence of a
meritorious affirmative defense, in order to obtain summary
judgment, Peak must demonstrate the absence of a factual dispute
as to at least one necessary element of the Shades' case.
Our review of the evidence offered by Peak in support
of its motion for summary judgment leaves us unconvinced that
Peak has carried this burden. First, Peak presented the
deposition testimony of Harvey Shade, in which he recalled
performing his own operational test on the PB 1470 before picking
it up on the day of the accident; he tested the speed control
switch and apparently found nothing malfunctioning. Peak infers
from this that if Shade could find no problem, its mechanics
could not reasonably have been expected to have discovered any
defect. The record does not make clear, however, whether Shade's
inspection of the PB 1470 as an operator was as thorough as the
inspection that a reasonable mechanic would have performed.
Standing alone, the fact that Shade inspected the PB 1470 before
using it does not indicate, for the purposes of summary judgment,
that Peak was free from negligence.
Second, Peak offered evidence that its mechanic, Don
York, operated the PB 1470 manlift in its high and low speed mode
at the scene shortly after the accident and again back at the
shop and found the equipment to be in proper operating condition.
Peak therefore implies that because its mechanics could not
duplicate the malfunction or discover an actual defect during the
post-accident inspection of the PB 1470, they could not have done
so beforehand and prevented Shade's injury. While we consider
such evidence probative, York's testimony cannot shift to the
Shades the burden of producing evidence of negligence without
some further evidence of the standard against which Peak's
conduct is to be measured.
We believe that in order to demonstrate that its
conduct prior to the accident was reasonable, as Peak attempted
to do in its summary judgment motion, it was incumbent upon Peak
to present some evidence of the following: the appropriate
standard for maintenance of the Grove manlift, the manner in
which Peak had maintained the PB 1470, and whether that
maintenance met or exceeded the appropriate standard. Peak chose
not to support its motion with affidavits or other evidence
relevant to any of these fundamental questions. In the absence
of such evidence, Peak failed to demonstrate that it was entitled
to summary judgment.
Similarly, Peak has argued that the Shades' breach of
contract claim cannot stand because the Shades failed to present
explicit language from the contract between Peak and ARCO
outlining Peak's duties in maintaining ARCO's heavy equipment.
Based upon the same analysis as presented above, we do not agree.
If Peak desires to seek summary judgment on the Shades' breach of
contract claim, as the moving party, Peak is required to
demonstrate that no genuine issue of material fact exists.
Because Peak chose not to support its motion by presenting
evidence pertaining to the contract, the fact that the Shades
have not done so is immaterial. Weaver Bros., Inc., 684 P.2d at
Because Peak has failed to satisfy its initial burden
to demonstrate the absence of genuine issues of material fact and
its entitlement to judgment as a matter of law, we reverse the
decision of the trial court which granted summary judgment in
favor of Peak.3
For the reasons set forth above, the entry of summary
judgment in favor of Peak is REVERSED and the case REMANDED for
1 In his deposition, York stated that he did not know
what the four switches were intended for or whether he was the
mechanic who ordered them.
2 The parties do not specifically address what standard
applies to the claims raised by the Shades for Peak's breaches of
the repair contract and an implied warranty of workmanship.
During oral argument below, Peak briefly cited case law for the
proposition that Alaska does not recognize implied warranties for
repairs. See Swenson Trucking & Excavating, Inc. v. Truckweld
Equip. Co., 604 P.2d 1113, 1119 (Alaska 1980). However, Swenson
is inapposite to the present case. In Swenson we held that a
contract for repair services does not fall under the provisions
of article two of the Uniform Commercial Code. Id. at 1119. The
U.C.C. has not been invoked here.
We believe that the general principles of Alvey provide
a uniform standard for all of the Shades' claims on review. In
Pepsi Cola Bottling Co. v. Superior Burner Service Co., 427 P.2d
833 (Alaska 1967), we reviewed jury instructions in an action for
improper repair of a boiler. We held that "[w]hether the tort
standard of care is considered, or the duty of care imposed by an
implied warranty of workmanlike performance . . . the resultant
standard of care required . . . is identical." Id. at 840.
3 Because we reverse the case on these grounds, we need
not reach the Shades' remaining points on appeal: (1) whether
the trial court abused its discretion when it denied the Shades'
motion for reconsideration; and (2) whether the trial court erred
in awarding Peak fees and costs.