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Smith v. Alaska (8/9/96), 921 P 2d 632
Notice: This opinion is subject to 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) 264-
THE SUPREME COURT OF THE STATE OF ALASKA
JANET SMITH, Personal )
Representative of the Estate ) Supreme Court No. S-7347
of DOMINIC SMITH, Deceased, )
) Superior Court No.
Appellant, ) 4BE-94-217 CI
) O P I N I O N
STATE OF ALASKA, )
) [No. 4384 - August 9, 1996]
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Bethel,
Jane F. Kauvar, Judge pro tem.
Appearances: Susan Orlansky, Jeffrey M.
Feldman, and Eric T. Sanders, Young, Sanders
& Feldman, Anchorage, for Appellant. David
H. Knapp, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
This appeal presents the sole question of whether a
genuine issue of material fact precludes summary judgment on the
scope of the duty assumed by the State of Alaska (State). The
superior court concluded that the State owed the decedent Dominic
Smith no duty and granted summary judgment in favor of the State.
Most of the facts underlying this appeal are not in
dispute. A May 1992 fluoride poisoning incident in Hooper Bay
resulted in widespread illness and the death of Dominic Smith.
The cause of this poisoning was ultimately traced to excessive
fluoride in the townsite water system. The water system was
owned and operated by Hooper Bay, not the State. In April 1992,
however, the State had installed new parts in the fluoride pump
at the townsite wellhouse. The State installed these parts in
response to excessive levels of fluoride found in water samples.
Prior to installing the new parts, the State had made
plans to "rehabilitate"the aging townsite water system in its
entirety, a project which would involve completely replacing all
of the equipment at the site, including the fluoride pump. The
rehabilitation work was scheduled to begin within a couple of
weeks of the date on which the fluoride poisoning occurred.
Janet Smith, the personal representative of Dominic
Smith's estate (Smith), brought suit against the State, alleging
that the State's negligence in resolving the fluoride problem in
the Hooper Bay water system was a cause of Smith's death. The
superior court granted summary judgment to the State, based on
its conclusion that the State did not have an affirmative duty to
fix the water system.
The parties agree that the State, by its voluntary
actions, assumed a duty of care to the residents of Hooper Bay.
They also agree that, absent a voluntary undertaking, the State
would have owed no duty of care to the residents in connection to
the distribution of water from the townsite water system. The
parties disagree, however, as to the precise nature of the duty
the State did assume regarding the Hooper Bay water system.
The State concedes that by working on the fluoride
pump, it assumed a duty to use reasonable care in performing this
work. This narrow duty is the only duty the State admits to
having assumed. Because there was no evidence that the work was
negligently performed by the State, the State contends that
summary judgment was appropriate.
Smith, however, argues that the State assumed a broader
duty, for it "undertook to resolve the fluoride problem." Smith
contends that the State should be held liable if it negligently
failed to complete this undertaking and if this failure was a
cause of Smith's death. Smith claims that evidence in the record
supports both "the inference that the State undertook to perform
the duty Hooper Bay owed its citizens to protect them from
overfluoridation"and "the inference that the State undertook
only to replace parts in the fluoride pump." According to Smith,
this uncertainty precludes summary judgment, since the nature and
extent of the State's duty would differ depending upon which
inference is drawn.
A. Standard of Review
We review summary judgments de novo. Dayhoff v. Temsco
Helicopters, Inc., 848 P.2d 1367, 1369 (Alaska 1993). In
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 on the law applicable to the
established facts. Cozzen v. Municipality of Anchorage, 907 P.2d
473, 475 (Alaska 1995); Broderick v. King's Way Assembly of God
Church, 808 P.2d 1211, 1215 (Alaska 1991). All reasonable
inferences of fact must be drawn in favor of the non-moving
party. Dayhoff, 848 P.2d at 1369.
B. Nature of the Duty
As the owner and operator of the townsite water system,
Hooper Bay is responsible for this system. See 18 AAC 80.005.
By voluntarily taking action on the Hooper Bay water system,
however, the State could have assumed certain duties towards
third persons who rely on the system. "One who undertakes,
gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of a
third person or his things, is subject to liability to the third
person for physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if . . . he has
undertaken to perform a duty owed by the other to the third
person[.]" City of Kotzebue v. McLean, 702 P.2d 1309, 1313 n.4
(Alaska 1985) (quoting Restatement (Second) of Torts 324A
The "precise nature and extent"of a duty "is a
question of law which can be decided at the summary judgment
stage." Mulvihill v. Union Oil Co., 859 P.2d 1310, 1314 n.4
(Alaska 1993). As a question of law, it is a question for the
court and not the jury to answer. "Although the precise nature
and extent of that duty is a question of law,"however, "it
depends on the nature and extent of the act undertaken, a
question of fact." Estate of Breitenfeld v. Air-Tek, Inc., 755
P.2d 1099, 1102 (Alaska 1988). Where reasonable people
could differ over the nature and extent of the act undertaken,
summary judgment is inappropriate, since the scope of the assumed
duty will vary depending on the inferences drawn from the facts.
See Saddler v. Alaska Marine Lines, Inc., 856 P.2d 784, 789
(Alaska 1993) (reasonable inference could be drawn that common
carrier had undertaken performance of services necessary for
protection of workers; inference created material issue of fact
concerning carrier's assumed duty, requiring reversal of summary
judgment). Where reasonable people could not differ over the
nature and extent of the act undertaken, summary judgment is
appropriate, insofar as there is no question as to whether the
duty the undertaking gave rise to was fully discharged. See
Mulvihill, 859 P.2d at 1314 (reasonable people could not differ
on nature and extent of voluntary undertaking when defendant
"only agreed to drive [co-employee] home;"summary judgment
properly granted because duty assumed through this undertaking
was fully discharged); Breitenfeld, 755 P.2d at 1103
("reasonable minds could not reach divergent conclusions
concerning the nature of the acts undertaken"by electrical
repair contractor; contractor undertook only to order replacement
part, which it did).
The superior court concluded that "[t]he facts
regarding the State's limited involvement with the water system
are not in dispute, as the parties agree there was only the
repair of the pump;"therefore "[t]he legal duty which would flow
from that is a question of law and public policy, not fact."
This conclusion is mistaken, because the appropriateness of the
grant of summary judgment in this case cannot be decided simply
as a question of law but is instead dependent on the nature and
extent of the undertaking, a question of fact. The repair of the
pump may have been a complete undertaking in and of itself, or it
may have been the initiation of a broader undertaking to resolve
the fluoride problem. While it may be true that the underlying
facts of the case - what was said and what was done - are not in
dispute, these underlying facts may be capable of supporting
different inferences as to the nature and extent of the State's
undertaking in working on the Hooper Bay water system. If the
record can support these competing inferences, a genuine issue of
material fact concerning the nature and extent of the duty
assumed by the State would exist, precluding summary judgment.
We conclude that the record can support such competing
inferences. A reasonable person could infer, from the evidence
in the record, that the State had undertaken to resolve the
fluoride problem, thereby assuming a duty towards Smith and other
Hooper Bay water users to complete this undertaking in a non-
negligent manner. First, statements made by State
employees prior to the work on the pump support the inference
that, in sending its engineers to Hooper Bay, the State undertook
to resolve the fluoride problem at a systemic level. Steve M.
Weaver, an engineer with the Village Safe Water (VSW) section of
the Alaska Department of Environmental Conservation (ADEC),
testified that Lynn Cochran, another ADEC employee, had asked VSW
to "check on the fluoridation system." VSW engineer Mac MacPhee
also stated that "the sanitarian in Bethel had mentioned that the
fluoride readings in the old watering point were erratic and had
requested we look at the system."
Second, statements by MacPhee support the inference
that, when he and fellow VSW engineer Doug Poage arrived in
Hooper Bay, their undertaking was not limited to the specific
task of installing parts to the pump but involved other actions
intended to correct the fluoride problem generally. MacPhee
stated that they conducted a general inspection of the system in
addition to installing the pump parts. They took water samples,
inspected the "well pump wiring and other wiring in the
building,"and "discussed the replacement of all the wiring and
conduit." Finally, before leaving Hooper Bay they gave the lead
operator at the townsite water system, Hooper Bay employee Adrian
Lake, instructions to test the fluoride level twice a day and
disconnect the fluoride pump if the level reached a certain
point. They prepared a "sheet for Adrian to record water usage
daily and  showed Adrian how to read and record the totals from
the water meter."
Third, statements made and actions taken by State
employees during the weeks that followed the pump work support
the inference that the State had undertaken to see to it that the
fluoride problem was kept under control. Poage made a follow-up
call, a week after the work was performed on the pump, to see
what the fluoride level was. Weaver testified that Poage had
planned a meeting in Hooper Bay to "look at the fluoridator and
resolve the problem"after high fluoride levels persisted.
Weaver "said no"to this plan, not because of a belief that the
State had already discharged the only duty it had assumed, but
because "[w]e're going to gut that building in less than two
weeks and throw all that stuff away; we don't need to waste time
on it now." Weaver instead instructed that the fluoride pump
should be shut off in the meantime, until the rehabilitation was
Viewing this evidence in the light most favorable to
Smith, as we must, it raises a genuine issue of material fact
whether the State undertook to correct the fluoridation problem
and thereby assumed the duty to complete this task non-
negligently. A jury could infer from this evidence that the
State had stepped in and taken on the responsibility of keeping
fluoride levels under control during the time it would take to
get the rehabilitated townsite water system up and running. (EN1)
Summary judgment was inappropriate when the evidence could
support this inference.
Because reasonable jurors could differ over the
inferences that should be drawn regarding the nature and extent
of the State's undertaking, a material issue of fact existed as
to the duty the State had assumed, one that should have precluded
We reverse the summary judgment and remand for a trial
on the merits.
1. This inference seems particularly plausible in light of VSW's
perception that Hooper Bay was unable to manage the townsite water
system effectively. Weaver testified that "Hooper Bay was at a
point in their organizational structure where they were unable to
operate their existing facilities correctly,"and that there was
need for "a training program and an education program"in addition
to the physical rehabilitation of the plant. A reasonable person
could infer that the State, having concluded that Hooper Bay was
unable to manage its own water system, had undertaken the task of
bringing the fluoride problem under control during the weeks prior
to the full rehabilitation of the system.