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Manes v. Coats (6/20/97), 941 P 2d 120
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, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
BETTY L. MANES, )
) Supreme Court No. S-7468
) Superior Court No.
v. ) 3VA-93-33 CIV
RICHARD COATS; PEGGY COATS, )
d/b/a ALWAYS INN; ONE CALL ) O P I N I O N
DOES IT ALL, a Partnership; )
and BETTY HUTCHISON, ) [No. 4839 - June 20, 1997]
Individually and d/b/a ONE )
CALL DOES IT ALL; and )
JEANETTE BRADSHAW, )
Individually, and d/b/a ONE )
CALL DOES IT ALL, )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Valdez,
Glen C. Anderson and Donald D. Hopwood, Judges.
Appearances: Richard L. Harren, Wasilla, for
Appellant. Timothy E. Miller, Law Offices of Timothy E. Miller,
Anchorage, for Appellees Bradshaw and Hutchison. No appearance by
Appellees Richard Coats or Peggy Coats.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
Betty Manes appeals from a judgment of the superior court
granting her partial recovery for injuries she sustained in a fall
down a stairwell. We affirm in part, reverse in part, and remand
for further proceedings.
II. FACTS AND PROCEEDINGS
In June 1991 Manes planned a visit to Valdez, Alaska.
She contacted "One Call Does It All"(One Call), a
reservation/referral service operated by Betty Hutchison and
Jeanette Bradshaw, to arrange for bed and breakfast accommodations.
Manes claims she requested a facility without stairs, because a
heart condition rendered her unable to cope with stairs. Manes
also requested a facility which allowed smoking. Hutchison denied
that Manes requested a facility without stairs, stating that there
were no bed and breakfast establishments in Valdez without stairs.
Manes testified that if she had known that no facility without
stairs was available, she would not have gone to Valdez.
One Call reserved a room for Manes at the Always Inn,
which was owned by Richard Coats and Peggy Coats. The Always Inn
was one of the few bed and breakfast establishments in Valdez which
allowed smoking, but the room which One Call reserved was
accessible only by stairs. These stairs lacked handrails and an
adequate landing area, and therefore fell below building code
standards. However, prior to referring clients to the Always Inn,
Hutchison and Bradshaw visited it and, from their perspective,
found nothing that required changing.
Manes had no further contact with One Call. Instead,
Manes received confirmation of her reservation directly from Peggy
Coats. Coats also requested a deposit for the room, which Manes
In August Manes arrived at the Always Inn. Upon
knocking, Manes was told to come in. Once inside, Manes, who was
wearing light-adjusting sunglasses that remained dark from the
outdoor light, was unable to see well. Nevertheless, she continued
walking forward. She took one step, fell down the stairs, and
fractured her wrist.
Manes sued the Coats for the injuries she sustained. She
also sued Bradshaw and Hutchison for directing her to the Always
Inn, and for failing to warn her of the "defective"stairwell.
The superior court granted partial summary judgment for
Bradshaw and Hutchison, holding that they were not "special agents"
of Manes, and that their "participation in booking a room was
solely in the nature of a referral." The court also held that
Bradshaw and Hutchison "did not assume responsibility for factors
or risks of which [they were] not aware"and that they had no duty
to make themselves aware "of all conditions at accommodations to
which [they] made referrals."
At the close of trial, after all parties had rested, the
court observed that Manes had offered no evidence regarding life
expectancy. In response, Manes attempted to reopen her case to
present various tables of life expectancy. Manes also asked the
court to take judicial notice of life expectancy information
contained in an Internal Revenue Service annuity taxation table.
The court refused to reopen the case, or to take judicial notice of
the table. In the absence of any evidence of Manes's life
expectancy, the court granted a motion for a directed verdict
barring future damages.
The jury awarded Manes past damages against the Coats,
but held Manes seventy-five percent comparatively negligent and
limited recovery accordingly. The jury did not hold Bradshaw and
Hutchison liable. This appeal followed.
A. The Superior Court Properly Granted Summary Judgment on
the Issue of One Call's Duty to Manes.
1. Standard of review
Summary judgment may be granted only if there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Estate of Arrowwood v. State, 894
P.2d 642, 644 n.2 (Alaska 1995). This court conducts de novo
review of the question. Beilgard v. State, 896 P.2d 230, 233
(Alaska 1995). All factual inferences are drawn in favor of the
non-moving party, and the existence of a genuine issue regarding
any material fact precludes summary judgment. Id. at 233.
The grant of summary judgment removed from the jury
consideration of Manes's claim that One Call had a duty to inform
itself of all hidden "conditions"at the Always Inn. However, the
jury did consider One Call's potential liability for referring
Manes to a room with stairs when she requested otherwise, and for
failure to disclose defects of which they were or should have been
aware. Manes's challenge to the grant of summary judgment can
prevail only if the facts show that an agency relationship existed
between Manes and One Call, which included a duty on the part of
One Call to inspect the Always Inn, and to discover hidden defects
beyond those apparent to a reasonable person in One Call's
situation. [Fn. 1] Since the facts, and reasonable inferences
drawn from them, do not give rise to such a duty, Manes's challenge
2. The issue of One Call's duty to Manes was properly
subject to summary adjudication.
"While the questions of what constitutes agency and
whether evidence is competent to show it are questions of law, the
evaluation of the evidence and the decision on whether an agency
relationship exists is for the factfinder." Foster v. Cross, 650
P.2d 406, 408 (Alaska 1982) (agency relationship existed under
contract); see also Sparks v. Republic Nat'l Life Ins., 647 P.2d
1127, 1140 (Ariz. 1982) ("While it is true that the question of
whether an agency existed is one of fact, when the material facts
from which the agency relationship could be inferred are not in
dispute, the question of whether an agency relationship exists is
a question of law.").
The facts which might give rise to an agency relationship
are undisputed in this case. One Call advertised as a free
reservation service. Manes contacted One Call with travel dates
and requirements, and was told that One Call would find a place for
her. Manes and One Call had no further contact. One Call reserved
a room for Manes at the Always Inn. Several weeks later, Manes
received a confirmation from the Always Inn, along with a request
for a deposit, which Manes sent. On these undisputed facts, the
issue properly is characterized as a dispute of the legal
consequences of those facts. A court may rule on the existence and
scope of an agency relationship which arises from undisputed facts.
Thus, this issue was properly subject to summary adjudication.
3. One Call's duty to Manes did not include a duty to
inspect the Always Inn.
The Restatement (Second) of Agency provides that in order
for an agency relationship to exist, the agent must have "a power
to alter the legal relations between the principal and third
persons." Restatement (Second) of Agency sec. 12 (1958). The
principal, in turn, must have "the right to control the conduct of
the agent with respect to matters entrusted to him." Restatement
(Second) of Agency sec. 14; see also Nicholas v. Moore, 570 P.2d
(Alaska 1977) (for master and servant agency relationship to exist,
principal must exercise control over the agent). If an agency
relationship does exist, the "extent of the duties of the agent to
the principal are determined by the terms of the agreement between
the parties, interpreted in light of the circumstances under which
it is made." Restatement (Second) of Agency sec. 376; see also
Szelenyi v. Morse, Payson & Noyes Ins., 594 A.2d 1092, 1094 (Me.
1991) ("The agent's duties are based on the manifestations of
consent of the parties and ordinarily must be inferred from the
Both Manes's control over One Call and One Call's power
to act on Manes's behalf were essentially nonexistent. The only
power One Call had to act on Manes's behalf was to make a
reservation in her name. One Call and Manes had no contact beyond
the initial phone call. Manes herself was required to submit a
deposit to secure that reservation. All other financial matters
remained Manes's responsibility. One Call received no payment from
Manes for its services. Moreover, Manes exercised no control over
One Call's actions beyond listing her requirements.
One Call never informed Manes that it either had
inspected or would inspect any establishment to which it referred
her, although Bradshaw in fact had examined the Always Inn to
discover its general condition and the features available to its
guests. As noted, the jury considered One Call's failure to
disclose defects of which it should have been aware, which would
include dangers which Bradshaw's examination should have revealed.
The imposition of a greater duty would effectively render One Call
an insurer of the safety of its patrons, and hold it responsible
for all hidden conditions at any facility to which it made
referrals. While Manes could reasonably rely on One Call not to
refer her to a location it knew was obviously dangerous, Manes has
presented no evidence which would entitle her to believe that One
Call's free service included such a broad duty. Indeed, such a
duty would be beyond the scope of the duties of a "travel agent"
[Fn. 2] and is not consistent with One Call's more limited role in
accommodation referral. [Fn. 3]
B. All of Manes's Challenges to Jury Instructions Lack
1. Standard of review
Jury instructions to which a timely objection is made are
subject to de novo review. See Conam Alaska v. Bell Lavalin, 842
P.2d 148, 153 n.9 (Alaska 1992) (challenges to jury instructions
present questions of law to which the court applies its independent
judgment). However, "[n]o party may assign as error the giving or
failure to give an instruction unless the party objects thereto
before the jury retires to consider its verdict." Alaska R. Civ.
P. 51(a). In the absence of an objection, jury instructions are
reviewed only for "plain error,"which occurs if "a correct
instruction would have likely altered the result." Conam Alaska,
842 P.2d at 153 (citations omitted).
2. Instruction 27 was proper.
Jury Instruction 27 provides that "Defendants Bradshaw
and Hutchison are not the special agents of plaintiff. . . ."
Manes failed to object to this instruction. Moreover, the
instruction was appropriate since it merely effectuates the court's
grant of summary judgment on that issue. As a result, the use of
this instruction did not constitute reversible error.
3. Proposed Instructions 50 and 51 were correctly
While Manes properly objected to the omission of Proposed
Instructions 50 and 51, [Fn. 4] her challenge to these omissions
fails. Proposed Instruction 50 provides that "Bradshaw and
Hutchinson [sic] are under a duty to exercise ordinary care in the
inspection of the premises . . . [and] failure to fulfill this duty
. . . would be negligence." The superior court correctly concluded
that the grant of partial summary judgment negated the existence of
a duty of inspection. An instruction which declared that the
defendants were under such a duty was therefore improper, and the
court did not err in rejecting that instruction. For its part,
Proposed Instruction 51 contains no actual instructions for the
jury. It neither outlines the findings the jury must make to
accept Manes's claim nor sets forth any legal directives to the
jury. Instead, it merely outlines Manes's argument that One Call
voluntarily undertook a duty of inspection. Failure to include a
summary of a party's arguments in the jury instructions does not
constitute reversible error.
4. The omission of Manes's proposed special verdict
form did not constitute error.
Manes argues that as a result of the court's refusal to
use her proposed special verdict form, [Fn. 5] the jury was
precluded from finding that the conduct of two or more defendants
was indistinguishable. This contention lacks merit.
A trier of fact is permitted to treat separate parties as
indistinguishable only if "the separate act or omission of each
person cannot be distinguished." AS 09.17.080(b). In this case,
no duty was common to all defendants. Peggy Coats was liable as a
property owner and as an innkeeper, while Richard Coats was liable
only as a property owner. The conduct which exposed each of them
to liability was not identical. While a jury could conclude that
their conduct as landowners was indistinguishable, Richard could
not be subject to liability as an innkeeper. Manes's form only
allowed the jury to find that the conduct of two or more defendants
was indistinguishable in its entirety, without regard for any
distinction between each party's responsibility. The court
properly refused to use such a form.
Manes's claims regarding the indistinguishability of the
One Call employees' conduct with each other or with the Coats
defendants also fail. As noted, the jury absolved Bradshaw and
Hutchison of liability. As a result, while their interests were
coextensive, any error concerning the indistinguishability of their
conduct from each other was harmless. Similarly, Manes cannot
argue that the non-culpable conduct of One Call was
indistinguishable from the culpable conduct of the Coats.
C. The Superior Court's Refusal to Take Judicial Notice of
the IRS Annuity Table, and Its Resulting Grant of a Directed
Verdict Denying Future Damages, Was Erroneous.
"A judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) generally known within
this state or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned."
Alaska R. Evid. 201(b). We have held that mortality tables are a
proper subject for judicial notice. Hinchey v. Hinchey, 722 P.2d
949, 953 n.9 (Alaska 1986) (trial court properly took judicial
notice of mortality table). Manes's request that the court take
judicial notice of the IRS table was timely, [Fn. 6] and should
have been granted.
The superior court's later grant of a directed verdict
rested in large part on the absence of life expectancy information,
from which the jury could have calculated the period for which
future damages were appropriate. Absent the superior court's
error, the jury would have had access to that information. Since
Manes's damages were impermissibly restricted by the directed
verdict, the court's refusal to take judicial notice of the table
constituted reversible error. [Fn. 7] We therefore remand the case
for consideration of future damages in light of our holding in
Hinchey. [Fn. 8]
The existence of an agency relationship between Manes and
One Call, arising from undisputed facts, is a matter of law to be
determined de novo by this court. The superior court's resolution
of this issue was correct. None of Manes's challenges to the jury
instructions have merit. However, the superior court's failure to
take judicial notice of a mortality table was error, as was its
resulting grant of a directed verdict barring future damages.
Accordingly, the decision of the superior court is AFFIRMED with
respect to the grant of summary judgment and the challenged jury
instructions. The superior court's grant of a directed verdict is
REVERSED, and the case is REMANDED for a determination of future
damages for which the Coats may be liable.
Manes also attempts to raise a claim based on innocent
misrepresentation. However, Manes waived all such claims in the
action below. As a result, Manes's innocent misrepresentation
claim cannot be raised on appeal.
This court has not yet considered the precise duties of travel
agents. Other jurisdictions are split regarding such duties.
Several courts have expressly excluded a duty of inspection from
the duties of a travel agent. Maurer v. Cerkvenik-Anderson Travel,
Inc., 890 P.2d 69 (Ariz. App. 1994) (travel agents have no duty of
investigation); see also United Airlines, Inc. v. Lerner, 410
N.E.2d 225 (Ill. App. 1980) (denying any duty of investigation).
Other courts have required travel agents to disclose all
"reasonably obtainable"information. McCollum v. Friendly Hills
Travel Center, 217 Cal. Rptr. 919, 924 (Cal. App. 1985) ("It would
seem absurd to hold that [a travel agent] had no duty to acquire
any knowledge of the facilities it was booking."(citation
omitted)); see also Douglas v. Steele, 816 P.2d 586, 589 (Okla.
App. 1991) (agent was liable for failing to discover host company's
bankruptcy); see also Rookard v. Mexicoach, 680 F.2d 1257, 1263
(9th Cir. 1982) (travel agents are not insurers of traveler safety,
but do have a duty to warn of dangers of which they are or should
be aware). The precise meaning of "reasonably obtainable
information"is unclear. However, there is no indication that a
duty to obtain such information requires agents to investigate
every establishment to which their clients travel. Indeed, such a
duty would render travel agents "insurers"of traveler safety,
which Rookard indicates they are not.
In all cases noted above, the "travel agents"were paid
directly by their clients in exchange for their service as agents.
By contrast, One Call received no payment from Manes, but was
instead compensated at a flat monthly rate by the various
establishments to which it made referrals. Indeed, Bradshaw
apparently viewed her business as the marketing agent of these
establishments rather than as the travel agent of guests. ("We
just wanted to provide something that would pay for the
advertising"for bed and breakfasts.). Moreover, One Call's
accommodation referral service was far more limited in scope than
the activities of travel agents as recognized in other
jurisdictions. Lerner, 410 N.E.2d at 227 (under Illinois law, "a
travel agent is one who . . . deals with carriers, plans an
itinerary, arranges for hotel accommodations, guides and tours of
each city and sets up the traveler's schedule."(citation
omitted)). As a result, any duty which One Call owed Manes fell
short of the duties of recognized travel agents in the noted cases.
"[C]ounsel should make a specific objection to a given
instruction"in order to provide the trial court with "an
identifiable opportunity to rule on a party's position." Conam
Alaska, 842 P.2d at 153 (citation omitted). Following the trial
judge's request for "objections or comments"regarding the
instructions, Manes's counsel noted that Instructions 50 and 51
were "noticeably absent,"and argued that their omission improperly
restricted Manes's possible theories of recovery. These remarks
indicate counsel's opposition to the omission, as well as the basis
for that opposition. Since these statements were adequate to
ensure that the court was clearly informed of the alleged error,
counsel's somewhat oblique "objection"sufficed to preserve the
issue for appeal.
As a type of jury instruction, a special verdict form is
subject to the same standard of review as other jury instructions.
"Judicial notice may be taken at any stage of the proceeding."
Alaska R. Evid. 203(b).
In any event, we note that a life expectancy table is not an
indispensable element to a claim for future damages.
On remand, the court should follow Hinchey in regard to
calculation of future economic damages as well as non-economic
damages. See Hinchey, 722 P.2d at 953 n.9 (interest rates are a
proper subject for judicial notice). We note as well that future
damages may be reduced to present value under AS 09.17.040(b)
without the testimony of an expert economist. Accordingly, Manes
is not required to present an expert economist in order to recover
future economic damages.