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Schumacher v. Cidy of Yakutat (8/15/97), 946 P 2d 1255
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
MARIE C. SCHUMACHER for )
herself, and for and on ) Supreme Court No. S-7288
behalf of her son, CHARLES W. )
MILTON, a minor child, ) Superior Court No.
) 1JU-94-276 CI
v. ) O P I N I O N
CITY AND BOROUGH OF YAKUTAT, ) [No. 4864 - August 15, 1997]
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Larry R. Weeks, Judge.
Appearances: Tony Strong, Law Offices of Tony
Strong & Associates, Juneau, for Appellant. F. Lachicotte Zemp,
Jr., Faulkner, Banfield, Doogan & Holmes, Juneau, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
Marie Schumacher appeals from a grant of summary judgment
rejecting her claim for damages for injuries her son incurred while
sledding down a city-owned road in Yakutat. We affirm.
II. FACTS AND PROCEEDINGS
Children in Yakutat went sledding frequently on a city-
owned road, when it was snowbound and had not been sanded. There
was evidence that municipal officials had been informed of this
activity. In March 1992, Charles Milton (Charles), then a twelve-
year-old child residing in Yakutat, was injured in a sledding
accident on the road. On many occasions, including on the day of
the accident, Charles's father warned him not to sled on the road.
Despite the warnings, Charles sledded down the road into its
intersection with a major street. As he entered the intersection,
he was struck by a car and seriously injured.
Following the accident, Charles's mother, Marie
Schumacher (Schumacher), filed suit against the City and Borough of
Yakutat (City) on Charles's behalf and in her own right. The
superior court granted summary judgment for the City on the ground
that the City had no duty to safeguard Charles from the obvious
danger inherent in sledding on the road. The court also concluded
that the City was immune from liability arising from the
performance of discretionary functions, such as adopting anti-
sledding measures. Schumacher appeals.
A. Standard of Review
Summary judgment may be granted only if there is no
dispute concerning a genuine issue of material fact [Fn. 1] 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 dispute
regarding any material fact precludes summary judgment. Id.
B. The City Did Not Breach a Duty of Due Care by Failing to
Prevent Charles from Sledding into Traffic.
In order to be liable for negligence, the City must have
owed and breached a duty to protect Charles from the harm he
suffered. [Fn. 2] The question whether an actionable duty of care
exists "is essentially a public policy question involving the
following considerations: the foreseeability of harm to the
plaintiff, the degree of certainty that the plaintiff suffered
injury, the closeness of the connection between the defendant's
conduct and the injury suffered, the moral blame attached to the
defendant's conduct, the policy of preventing future harm, the
extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting
liability for breach, and the availability, cost and prevalence of
insurance for the risk involved." D.S.W. v. Fairbanks N. Star
Borough Sch. Dist., 628 P.2d 554, 555 (Alaska 1981) (citation
While several of the factors outlined in D.S.W. militate
in favor of the existence of a duty in this case, [Fn. 3] these
factors are outweighed by "the extent of the burden to the
defendant and consequences to the community of imposing [such] a
duty." Id. at 555. In essence, Schumacher is arguing that this
court should impose liability on anyone who is aware of another's
self-destructive behavior, has any ability to prevent that
behavior, and fails to save the injured party from his or her own
conduct. Such a holding would transform the law of negligence from
a means whereby a person may recover for losses caused by a danger
which another's unreasonable behavior created, to a mechanism
permitting persons injured by their own conduct to compel any who
failed to prevent that conduct to share the burdens of their
negligence. We decline to permit such a result. Therefore, we
hold that a city cannot be liable for failure to take specific
steps to prevent sledding in its streets, or to ensure that its
streets were safe for sledding. [Fn. 4] Accordingly, we conclude
that the City owed no duty to protect Charles from the dangers
inherent in sledding into an intersection. [Fn. 5]
Since the City did not have a duty to protect Charles
from obvious risks created by his own conduct, the City cannot have
committed any breach which might give rise to liability. [Fn. 6]
As a result, the superior court's grant of summary judgment in
favor of the City did not constitute error.
Schumacher contends that other jurisdictions have held
that municipalities owe a specific duty of care to children playing
in streets. However, that duty only requires municipalities to
protect against dangers caused by harmful road conditions, such as
obstacles or damaged pavement. McQuillin Mun. Corp. ' 54.52 (3d
ed. 1994) (citations omitted). That duty does not extend to
dangers created by a child's own improper conduct. "Municipalities
are not insurers of the lives and safety of children, nor are they
under a greater duty as regards the safety of streets for children
than for adults." Id. (citations omitted). Accordingly, "a child,
like an adult, cannot recover where . . . the cause of the injury
was the child's wantonly reckless act." Id. (citations omitted);
see also Liability of Municipal Corporation for Injury Related to
Coasting in Street, 46 A.L.R. 1435 ("It is well settled that the
use of the highway by coasters is not a defect or obstruction
therein, such as would render a [municipality] liable for injuries
caused thereby."). Schumacher's contention therefore fails.
Schumacher also attempts to hold the City liable on a
theory that, as a property owner, the City had a duty to protect
against obvious risks caused by dangerous conditions existing on
its property. Since Charles was injured by risks that his own
conduct generated, rather than by an inherently dangerous property
condition, this claim also lacks merit.
As a general rule, landowners have a duty to use due care
to guard against unreasonable risks [Fn. 7] created by dangerous
conditions existing on their property. State v. Abbott, 498 P.2d
712, 723 (Alaska 1972) (holding that ice which state failed to
remove from highway was dangerous condition). "A landowner . . .
must act as a reasonable person in maintaining his property in a
reasonably safe condition in view of all the circumstances,
including the likelihood of injury to others, the seriousness of
the injury, and the burden on the respective parties of avoiding
the risk." Webb v. City & Borough of Sitka, 561 P.2d 731, 733
(Alaska 1977) (applying "ordinary principles of negligence"to
persons injured by land conditions).
The dangers inherent in sledding down a road do not
qualify as dangers caused by a "condition"of land. Aside from
activities induced by "attractive nuisances,"the definition of
"conditions"that landowners may be required to protect against
does not include the conduct of third parties. [Fn. 8] On the
contrary, other courts have expressly excluded third party activity
from that definition. Rombalski v. City of Laguna Beach, 213 Cal.
App. 3d 842 (1989) (holding that rock was not a "dangerous
condition"injuring one who dived from it, since the rock only
became dangerous as a result of plaintiff's misuse of it); see also57 Am. Jur. 2d, Municipal, County, School and State Tort Liability' 284 (1988) ("'Dangerous condition' refers to the physical
condition of the property itself, not to activities on the
property, and does not generally encompass the wrongful, criminal,
or negligent conduct of third persons."). Like the rock in
Rombalski, the road only became a danger to Charles as a result of
his own misuse of it. Whatever duty the City might have owed to
Charles regarding dangerous road conditions did not extend to
dangers created by Charles's own conduct.
The City owed no duty to protect Charles from the obvious
dangers posed by sledding down a road into an intersection.
Accordingly, the accident which injured Charles, while tragic, was
not the result of the City's negligence. The decision of the
superior court is AFFIRMED.
"Whether particular conduct is negligent or reasonable is a
question of fact for the jury . . . ." Gordon v. Alaska Pac.
Bancorporation, 753 P.2d 721, 725 (Alaska 1988). However, the
existence and extent of a duty to act is a question of law.
Mulvihill v. Union Oil Co., 859 P.2d 1310, 1314 n.4 (Alaska 1993).
This case concerns only a possible breach of a duty to
prevent sledding. Any breach of a duty to warn against sledding
was not a cause of injury, since Charles was warned by his father.
This harm was foreseeable from Charles's conduct, and it
is certain that his conduct resulted in injury. Moreover, the risk
of future harm would be reduced by requiring the City to prevent
children from taking dangerous actions.
We also note that the factor concerning the closeness of the
connection between the injury and the defendant's conduct militates
against the existence of a duty, since the injury was more closely
connected to Charles's conduct than to that of the City.
To the extent that a child might be owed greater protection
against his or her own dangerous conduct than an adult, the effect
of Charles's status as a child on the City's duty of care is
encapsulated in the doctrine of attractive nuisance, discussed
infra note 8.
Our holding that the City had no duty to protect Charles from
the risks created by his own conduct obviates the need to consider
whether the City's failure to act fell within the ambit of a
municipality's discretionary immunity under AS 09.65.070(d)(2).
A risk is unreasonable if "the likelihood and gravity of the
harm threatened outweighed . . . the burden on the [defendant] for
removing the danger." Abbott, 498 P.2d at 725.
Schumacher also has raised the issue of attractive nuisance.
However, the doctrine of attractive nuisance only permits children
to recover for injuries caused by a land condition if "the children
because of their youth do not discover the conditions or realize
the risk involved." Taylor v. Alaska Rivers Navigation Co., 391
P.2d 15, 17 (Alaska 1964). If the risk that a condition presents
is obvious even to children, the doctrine does not apply, and a
child injured by that risk cannot recover. Ostrosky v. Mount
Prospect Shop-Rite, Inc., 228 A.2d 545 (N.J. Super. 1967) (holding
that when nine-year old was injured while sledding in a parking
lot, lot owner had no duty to protect the child from the risk
created by her action). The danger posed by sledding on the road
would be clear to any reasonable twelve-year old, especially since
Charles had been repeatedly warned by his father of the dangers of
sledding on the road. Since Charles's youth did not render him
unable to appreciate the risk created by his conduct, the doctrine
of attractive nuisance does not apply.