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Briggs v Newton (8/13/99) sp-5154
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, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
RAY T. BRIGGS and )
GILBERT D. SHEA, ) Supreme Court No. S-8375
Appellants, ) Superior Court No.
) 3PA-92-841 CI
) O P I N I O N
ALVIN NEWTON and WILLIAM )
CHRISTENSEN, d/b/a R & R ) [No. 5154 - August 13, 1999]
PLUMBING AND HEATING, )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
Eric Smith, Judge.
Appearances: Ray T. Briggs and Gilbert D.
Shea, pro se, Palmer. Jerald M. Reichlin, Fortier & Mikko, P.C.,
for Appellee Alvin Newton. No appearance by Appellee William
Christensen, d/b/a R & R Plumbing and Heating.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
In this appeal, two contractors, Ray Briggs and Gilbert
Shea, claim that William Christensen interfered with their
contractual relationship with business owner Jim Hess and made
defamatory statements about them to Hess. The superior court
granted summary judgment in favor of Christensen for three reasons:
(1) Briggs lacked standing because the suit belonged to his
bankruptcy estate and could only be brought by the trustee; (2) the
interference claim was collaterally estopped by a district court's
finding in a prior suit that Briggs and Shea breached their
contract with Hess; and (3) Christensen's comments, though
defamatory, were privileged. We affirm.
II. FACTS AND PROCEEDINGS
In August 1991 Jim Hess entered into an oral contract
with Ray Briggs to remodel Hess's business, the Anchorage Auction
Company. According to Hess, he and Briggs agreed on a flat rate of
$6,500 for Briggs's work. Briggs hired another contractor, Gilbert
Shea, to assist him; the two worked on the job for approximately
one week. At the end of the first week, Briggs and Shea presented
a bill to Hess for that week's work. Hess refused to pay based on
his understanding that they had signed a fixed price contract.
Briggs and Shea immediately discontinued their remodeling work.
Briggs and Shea claim that, after they began the
remodeling work, Hess insisted they use William Christensen, d/b/a
R & R Plumbing and Heating (R & R), to help them install a new
furnace for Hess even though Christensen did not have a license to
do furnace work. Hess had known Christensen for ten years and had
worked with him previously. According to Briggs and Shea, they
were forced to terminate their work for Hess rather than illegally
hire an unlicensed subcontractor.
After Briggs and Shea left the project, Hess contracted
with Christensen to complete the construction for $3,500.
Christensen later gave Hess a written summary of the job that
estimated the actual cost to him of completing the work to be about
$5,200. Christensen wrote to Hess that he felt "the job was
purposely [underbid by Briggs] in order to obtain it, with the
intention of going for more money [halfway] through the project."
He claimed he "finished [the] job not for a profit but more from a
concern that Jim and Virginia Hess had an office to work with, as
everything was left in such a mess when [Briggs] walked off his
In August 1991 Briggs reported to the City of Anchorage
Building Permits Division that Christensen was performing furnace
work for Hess that was beyond the scope of Christensen's city
contracting license. [Fn. 1] In response, the City placed a stop
work order on the project. Hess then entered into a contract for
$3,500 with Superior Plumbing and Heating to complete the
installation of forced air ducting and a new furnace.
Later in 1991, Briggs and Shea filed a small claims
action against Hess for the cost of labor and materials for the
construction work they did complete on the barn. [Fn. 2] Hess
filed a counterclaim against Briggs and Shea for the additional
costs of completing the job. The case was eventually moved to
district court. After a bench trial in January 1993, District
Court Judge John R. Lohff concluded that:
(1) the oral contract between Briggs and Hess
was a fixed price contract for $6,500;
(2) the contract called for Briggs and Shea
to upgrade Hess's existing heating system using furnaces provided
(3) Briggs and Shea breached their contract
with Hess by discontinuing work on the project;
(4) although Hess could recover for costs
incurred in finishing the project, Briggs and Shea could offset
that recovery with the cost of their labor; and
(5) many of Briggs' and Shea's assertions
were "highly suspect and of dubious veracity"and, thus, neither
Briggs nor Shea were entitled to costs or attorney's fees.
Judge Lohff determined that Briggs was entitled to a net judgment
against Hess of $240 and that Shea was entitled to $840. The
superior court affirmed Judge Lohff's ruling.
In July 1992, while the district court suit was pending,
Briggs filed a voluntary petition for bankruptcy under Chapter 7 of
the United States Bankruptcy Code. [Fn. 3] In his petition, Briggs
listed his lawsuit against Hess's Anchorage Auction Company as
personal property with a value of $3,217.49.
One week after Briggs filed his petition for bankruptcy,
Briggs and Shea filed a complaint against Christensen and the
previous owner of R & R, Alvin Newton [Fn. 4] (collectively,
Christensen), alleging intentional interference with their contract
with Hess. Briggs and Shea also claimed that Christensen's
statements to Hess about their work performance were defamatory.
Superior Court Judge Eric Smith granted summary judgment
to Christensen in September 1997 on both the interference and
defamation claims. Judge Smith held that, because the district
court judge had found in Briggs v. Hess that Briggs and Shea
breached their contract with Hess, they were collaterally estopped
from claiming in this case that Christensen interfered with their
contract with Hess. Although Judge Smith concluded that
Christensen made defamatory comments to Hess about Briggs and Shea,
he also concluded that the "business relationship"privilege
protected such comments. Finally, Judge Smith decided that Briggs
lacked standing because the lawsuit was an asset of the bankruptcy
estate and, thus, the only proper plaintiff was the bankruptcy
trustee. Briggs and Shea appeal.
III. STANDARD OF REVIEW
We will uphold a grant of summary judgment only if no
genuine issue of material fact exists in the record and the moving
party is entitled to judgment as a matter of law. [Fn. 5] When we
make such a determination, we draw all reasonable factual
inferences in favor of the non-moving party. [Fn. 6]
The applicability of collateral estoppel to a particular
set of facts is a legal question over which we exercise independent
review. [Fn. 7] The issues of whether a party has standing and
whether a statement is defamatory are also legal questions. To
resolve them, "we apply our independent judgment and adopt the rule
of law that is most persuasive in light of precedent, reason, and
A. Briggs Lacks Standing Because the Suit Belongs to His
Christensen contends that because Briggs's claims against
R & R are part of Briggs's bankruptcy estate, only the bankruptcy
trustee has standing to raise the claims. We agree. Briggs's
bankruptcy estate includes any cause of action belonging to him at
the time he filed his petition for bankruptcy under 11 U.S.C. sec.
541. [Fn. 9] When a debtor's assets include causes of action, the
bankruptcy trustee becomes the proper plaintiff to pursue those
claims; only the trustee has standing to pursue causes of action
that now belong to the estate. [Fn. 10]
Briggs counters that the superior court may not dismiss
the suit because federal courts have exclusive jurisdiction over
bankruptcy proceedings. But this "exclusive jurisdiction"argument
is irrelevant. Federal courts have exclusive jurisdiction over
"all cases under title 11"of the United States Code, [Fn. 11] as
well as original -- but not exclusive -- jurisdiction over other
civil cases "arising under title 11, or arising in or related to
cases under title 11."[Fn. 12] In turn, the case law analyzing
the meaning of the terms "arising under"and "related to"generally
concerns the limits on federal jurisdiction over such related civil
cases. [Fn. 13] Thus, Briggs's argument proves, at most, that a
federal court could exercise jurisdiction over his related contract
claim. [Fn. 14]
Because we conclude that Briggs lacks standing, we now
must determine what the appropriate procedural remedy should be.
Generally, "[w]hen a third party tries to assert an action still
vested in the trustee, the court should dismiss the action."[Fn.
15] But some courts have allowed the bankruptcy trustee to
substitute for the debtor as the real party in interest and to
continue litigating the case without dismissal and refiling of the
case. [Fn. 16]
Here, the superior court held that, "[a]t a minimum,
then, [Briggs's] case must be dismissed as to Mr. Briggs without
prejudice . . . ." In light of our conclusion that Shea's claims
are legally meritless, we believe that dismissal without prejudice
of Briggs's claims is a more suitable remedy than a remand for
substitution of the bankruptcy trustee as plaintiff. Thus, the
remainder of our opinion reviewing the superior court's grant of
summary judgment applies only to Shea and his claims against Newton
B. Shea Failed to Raise a Genuine Issue of Material Fact on
His Interference Claim.
The superior court agreed with Christensen that because
the district court in Briggs v. Hess ruled that Briggs and Shea
breached their contract with Hess, the doctrine of collateral
estoppel precludes assertion of an interference claim against
Christensen. But a party in breach may under certain circumstances
bring a subsequent independent claim for contractual interference
against a third party. [Fn. 17] Thus, we decline to adopt the
superior court's reasoning that a party in breach may never sue a
third party for contractual interference.
We believe that summary judgment was nonetheless
appropriate because, as Christensen argued in his motion for
summary judgment, Shea failed to raise a genuine issue of material
fact as to whether Christensen intentionally interfered with Briggs
and Shea's contract with Hess. [Fn. 18] To sustain an interference
claim, a plaintiff must show that "(1) a contract existed, (2) the
defendant . . . knew of the contract and intended to induce a
breach, (3) the contract was breached, (4) defendant's wrongful
conduct engendered the breach, (5) the breach caused the
plaintiff's damages, and (6) the defendant's conduct was not
privileged or justified."[Fn. 19]
Based on a reading of the initial complaint and the
opposition to Christensen's motion for summary judgment, Shea sets
forth two different theories in support of his interference claim.
First, he claims that Christensen interfered with the relationship
between Briggs and Shea and Hess by "advising [Hess] that the work
performed by [them] was negligently performed." But Christensen
made the allegedly defamatory statements to Hess after Briggs and
Shea breached their contract with Hess by walking off the job, in
an attempt to explain why the actual cost of finishing the work was
higher than Briggs and Shea's bid. Logically, if Christensen made
the comments after the breach, then Christensen could not have
induced the breach by making such comments.
Shea's alternative theory is that Christensen "directly
conspired to induce a [breach]"by entering into a contract with
Hess before Briggs and Shea quit the job in order to force Briggs
and Shea to abandon the project and take the job for himself. But
the record does not support this theory. Instead, all the evidence
presented to the superior court suggests that Christensen was not
competing with Briggs and Shea but rather was retained by Hess to
assist them and that Christensen agreed to complete the unfinished
work for Hess only after Briggs and Shea breached their contract
with Hess. The district court in Briggs v. Hess found that
Christensen "was to assist in the project"along with Briggs and
Shea. [Fn. 20] Hess also testified in Briggs v. Hess that he asked
Christensen to perform a cost estimate on the project prior to Hess
hiring anyone, including Briggs and Shea, to do the furnace work
and that Christensen "had some other jobs going"and had no
intention of bidding for the project himself. Shea does not refute
Shea also presents no evidence that Christensen
contracted with Hess to perform the project that Briggs and Shea
were in the process of completing. On the contrary, the bill for
Christensen's services makes clear that Christensen was to finish
the office work that Briggs and Shea left behind for a flat fee of
$3,500. After Briggs and Shea breached their contract with Hess,
Christensen gave Hess a summary of job costs documenting that the
actual cost of the project was $5,200. But he only charged Hess
$3,500, presumably the original amount he was to receive for
assisting Briggs and Shea with the furnace work. This job summary
squares with Christensen's response to a request for admission that
he "agreed to finish the cosmetic portions of the remodel for a sum
of $3,500.00 so the auction could resume business."
Shea attempts to use Christensen's assistance on the
project as a means of justifying the breach of the contract with
Hess. Shea reasoned in his opposition to Christensen's summary
judgment motion that
[r]egardless of the intent of [Christensen,]
if . . . installation of a gas furnace by R&R was a part of [Briggs
and Shea's] contract, then the performance of any alleged contract
became illegal, [Briggs and Shea] could not complete the project,
and not only had every right, but [were] required by law to cease
But the district court in Briggs v. Hess nonetheless found that
Briggs and Shea had breached their contract with Hess. Although
the court in Briggs v. Hess did not explicitly address what
motivated Briggs and Shea to breach the contract, it did note that
they walked off the job immediately after Hess refused to pay them
for a week's work because of his understanding that the contract
was for a fixed price.
Because of the district court's findings in Briggs v.
Hess, Shea is now collaterally estopped from raising new defenses
to the breach or arguing that a breach did not occur. A party may
invoke nonmutual offensive collateral estoppel when the doctrine is
asserted against the same party as in the previous action, when the
issue to be precluded is identical to that in the first action, and
when the issue was resolved by a final judgment on the merits in
the first action. [Fn. 21] Here, Christensen would be asserting
the doctrine against the same parties as in the first action --
Briggs and Shea. The issue that Briggs and Shea sought to
relitigate -- whether they breached their contract with Hess -- was
identical to that in the first action. And the district court's
ruling in Briggs v. Hess was final and on the merits.
In short, the fact that Christensen may have
misrepresented his licensing status to Hess and began assisting
with furnace work prior to Briggs and Shea's completion of the
project for Hess is insufficient as a matter of law to sustain an
interference claim against Christensen. Shea offers no evidence
that Christensen intended to induce a breach of the contract with
Hess; he relies on conduct that occurred after he and Briggs
breached their contract with Hess by walking off the job. Thus,
the superior court properly granted summary judgment on the
C. Shea Failed to Raise a Genuine Issue of Material Fact as
to Whether Christensen's Statements Were Defamatory and Unprotected
Shea next claims that Christensen made several defamatory
statements about him and Briggs to Hess. Christensen submitted a
job summary sheet to Hess in which he described the scope of the
project and attempted to explain why the cost of finishing the
project would probably exceed Briggs and Shea's original bid. In
this document, Christensen wrote that Briggs's work was of low
quality and that Briggs's job "was purposely [underbid] in order to
obtain it, with the intention of going for more money [halfway]
through the project." Christensen maintains that such statements
are not defamatory or, in the alternative, that they are protected
by the "business interest"privilege.
To prove that a statement is defamatory, a plaintiff must
(1) a false and defamatory statement; (2) an
unprivileged publication to a third party; (3) fault amounting at
least to negligence on the part of the publisher; and (4) the
existence of either "per se"actionability or special harm.[ [Fn.
"A communication is defamatory if it tends to harm the reputation
of another so as to lower him [or her] in the estimation of the
community or to deter third persons from associating or dealing
with him [or her]."[Fn. 23] Drawing all reasonable factual
inferences in favor of Shea, we agree with the superior court's
conclusion that Christensen's comments about Briggs and Shea's work
performance could be considered defamatory.
But we also agree with the superior court that, even if
Christensen's comments were defamatory, Shea cannot maintain a
defamation claim because the statements were privileged. "One who
publishes defamatory matter concerning another is not liable for
the publication if: (a) the matter is published upon an occasion
that makes it conditionally privileged and (b) the privilege is not
abused."[Fn. 24] We have acknowledged two types of conditional
privileges: when the media prints items of public interest and when
a person "having a common interest in a particular subject matter
believes that there is information that another sharing the common
interest is entitled to know."[Fn. 25] Specifically, we have
recognized a conditional privilege based on either a joint business
interest [Fn. 26] or an employee/employer relationship [Fn. 27]
when a statement is made "for the protection of a lawful business,
professional, property or other pecuniary interest."[Fn. 28] The
defendant has the burden of asserting the privilege. [Fn. 29]
Here, Christensen met that burden. As he explained in
his motion for summary judgment, Christensen's statements were part
of a document Christensen created to explain to Hess the scope and
cost of finishing the job Briggs and Shea began. Christensen's
speculations as to why Briggs's bid was so low could reasonably be
construed as a means of justifying the relatively high costs of
finishing the project, thereby protecting Christensen's business
interest in the project.
The business privilege is clearest "when a legal
relationship exists between the defendant and the person on whose
behalf he intervenes."[Fn. 30] Here, Christensen and Hess had a
contractual relationship and had been doing business together for
years. Thus, Christensen "could reasonably have thought [Hess]
should be informed of [Christensen's] dissatisfaction with [Briggs
and Shea's] performance."[Fn. 31]
The question thus becomes whether Christensen abused the
business privilege. A conditional privilege may be abused if the
defendant acted with malice -- if he had "knowledge or reckless
disregard as to the falsity of the defamatory matter"or if the
matter is "not reasonably believed to be necessary to accomplish
the purpose for which the occasion is privileged."[Fn. 32] In
making this determination, we look to whether the speaker had a
reasonable belief in the truth of the statement. [Fn. 33]
"Ordinarily, once a defendant establishes the existence of a
privilege the plaintiff has the burden of showing that it has been
Christensen argued in his motion for summary judgment
that no evidence was produced to demonstrate any malice on his
part. We agree. An examination of the allegedly defamatory
document reveals that Christensen tempered his comments with the
admission that he was not present for the original bid and that his
comments merely reflected his personal opinion. Shea has pointed
to no evidence, other than the document itself, to establish that
Christensen knew his statements were false or that he acted
recklessly with respect to their falsity. In Lull v. Wick
Construction Co., [Fn. 35] we found a lack of malice as a matter of
law under very similar facts. In Lull, a subcontractor, The
Crowning Touch, brought a defamation suit against its general
contractor, Wick Construction, because Wick communicated to The
Crowning Touch's bank and bonding company about Wick's
dissatisfaction with The Crowning Touch's performance on a
particular project. [Fn. 36] We held that Wick had not abused the
business privilege and was entitled to judgment as a matter of law
on the defamation claim:
[T]he evidence . . . reveals no indication
that the communications from Wick to the bank and bonding company
were made with malice. . . . The letter, copies of which Wick sent
to the bank and bonding company, did not go beyond stating that
Wick was taking over the contract because of nonperformance by The
Crowning Touch, and listing the particular instances of
nonperformance of which Wick accused The Crowning Touch.[ [Fn. 37]]
Just as The Crowning Touch presented no evidence that Wick's
accusations were malicious, Shea has provided no indication that
Christensen's comments were made with malice. Under these
circumstances, the superior court did not err in its grant of
summary judgment to Christensen on the defamation claim.
Because the trustee for Briggs's bankruptcy estate is the
only proper plaintiff to bring Briggs's substantive claims, we
AFFIRM the superior court's dismissal of Briggs's claims without
prejudice on standing grounds. Because Shea failed to raise a
genuine issue of material fact as to whether Christensen
intentionally interfered with Briggs and Shea's contract or whether
Christensen's allegedly defamatory comments were protected by the
business privilege, we also AFFIRM the superior court's grant of
summary judgment to Christensen on those claims.
In January 1992 Christensen was charged with three counts of
submitting bids and working as a contractor and plumber without a
license from 1990 to 1992.
See Briggs v. Hess, Nos. 3AN-92-2155/2156 CI (Consolidated)
(Alaska Dist. Ct., November 17, 1993).
See 11 U.S.C. sec.sec. 701-766.
Newton had previously owned R & R under the name R & R
Plumbing and had entered into an agreement to sell the business to
Christensen in August 1988. According to Newton, Christensen never
completed payments on the sale. Newton testified in Briggs v. Hess
that he and Christensen were in a type of "partnership." The exact
nature of their business relationship remains a disputed issue that
the superior court chose not to resolve.
See Bishop v. Municipality of Anchorage, 899 P.2d 149, 153
(Alaska 1995) (citation omitted).
See State v. United Cook Inlet Drift Ass'n, 895 P.2d 947, 950
State, Dep't of Transp. & Pub. Facilities v. Sanders, 944 P.2d
453, 456 (Alaska 1997).
11 U.S.C. sec. 541(a)(1) provides that the estate includes
legal or equitable interests of the debtor in property as of the
commencement of the case." See also Bohna v. Hughes, Thorsness,
Gantz, Powell & Brundin, 828 P.2d 745, 754 (Alaska 1992).
See Bohna, 828 P.2d at 754 (citing Hanover Ins. Co. v. Tyco
Indus. Inc., 500 F.2d 654, 657 (3d Cir. 1974)); see also Price v.
Gaslowitz (In re Price), 173 B.R. 434, 440 (Bankr. N.D. Ga. 1994)
("[A] debtor may not unilaterally prosecute a claim that belongs to
the estate."); Dorr, Keller, Bentley & Pecha v. Dorr, Bentley &
Pecha, 841 P.2d 811, 816 (Wyo. 1992) ("All causes of action . . .
may only be brought by the trustee after the petition in bankruptcy
28 U.S.C. sec. 1334(a).
28 U.S.C. sec. 1334(b).
See, e.g., AMW Cable Co., Inc. v. McCray, 209 B.R. 410, 413-14
(Bankr. N.D. Miss. 1997); Boyajian v. DeLuca, 180 B.R. 365, 368
(Bankr. D. R.I. 1995). See generally 28 U.S.C.A. sec. 1334(b)
47, 48 (1993 & West Supp. 1998).
The superior court's statement that Alaska courts have
jurisdiction over Briggs's case because it "certainly is related to
the bankruptcy proceeding"is thus inaccurate.
Even if the "related to"test applied here, most courts
have found that a debtor's breach-of-contract and tortious
interference cases are sufficiently "related to"bankruptcy
proceedings as to be within the scope of the district court's
original jurisdiction. See, e.g., Hughes-Bechtol, Inc. v.
Construction Management, Inc., 132 B.R. 339, 343 (Bankr. S.D. Ohio
1991) (holding that debtor's breach-of-contract suit was "related
to"bankruptcy case because potential recovery could alter debtor's
rights or liabilities). And at least one court has held that a
debtor could not enjoin a state breach-of-contract suit when the
federal court merely had concurrent, not exclusive, jurisdiction
over the case. See Florida Precast Concrete, Inc. v. City of
Orlando, 139 B.R. 37, 38-39 (Bankr. M.D. Fla. 1992).
In re Perkins, 902 F.2d 1254, 1258 (7th Cir. 1990); see alsoPierson & Gaylen v. Creel & Atwood (In re Consolidated Bancshares,
Inc.), 785 F.2d 1249, 1253-54 (5th Cir. 1986); Mitchell Excavators,
Inc. v. Mitchell, 734 F.2d 129, 131-32 (2d Cir. 1984).
See, e.g., Cottrell v. Schilling (In re Cottrell), 876 F.2d
540, 543 (6th Cir. 1989) (granting a motion to substitute trustee's
counsel in the suit rather than dismissing the case); Bauer v.
Commerce Union Bank, 859 F.2d 438, 441 (6th Cir. 1988) (holding
that because debtor lacked standing, court properly substituted
trustee as plaintiff).
The Restatement (Second) of Torts defines "intentional
interference with another's performance of his own contract"as
One who intentionally and improperly
interferes with the performance of a contract . . . between another
and a third person, by preventing the other from performing the
contract or causing his performance to be more expensive or
burdensome, is subject to liability to the other for the pecuniary
loss resulting to him. [Fn. 38]
Restatement (Second) of Torts sec. 766A (1979). See also Plattner
State Farm Mut. Automobile Ins. Co., 812 P.2d 1129, 1133-34 (Ariz.
App. 1991) (allowing attorney to bring an interference claim
against a third party for forcing him to breach his contract with
We may affirm a superior court's grant of summary judgment on
any grounds. See Ward v. Lutheran Hosp. & Homes Soc'y of Am.,
Inc., 963 P.2d 1031, 1034 (Alaska 1998).
RAN Corp. v. Hudesman, 823 P.2d 646, 648 (Alaska 1991)
Shea does not dispute this finding. Indeed, he used it to
argue in the opposition to Christensen's motion for summary
judgment that Christensen knew about the contract.
See Rooney v. Rooney, 914 P.2d 212, 215-16 (Alaska 1996).
French v. Jadon, Inc., 911 P.2d 20, 32 (Alaska 1996).
Id. (alterations in original) (citation omitted).
Schneider v. Pay'N Save Corp., 723 P.2d 619, 623 (Alaska 1986)
(quoting Restatement (Second) of Torts sec. 593 (1977)).
Id. at 623-24 (citing Lull v. Wick Constr. Co., 614 P.2d 321
(Alaska 1980)) (internal quotation marks omitted).
See Lull, 614 P.2d at 324.
See Schneider, 723 P.2d at 624.
Id. (discussing and adopting comments to Restatement (Second)
of Torts sec. 595).
Schneider, 723 P.2d at 624.
Lull, 614 P.2d at 324.
Id. at 624-25 (quoting Restatement (Second) of Torts sec. 599
cmt. a (1977)).
See id. at 625.
Id. at 624.
614 P.2d 321 (Alaska 1980).
See id. at 322-23.
Id. at 324-25 (footnote omitted).
Restatement (Second) of Torts sec. 766A (1979).