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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Burnett v. Covell (08/29/2008) sp-6299

Burnett v. Covell (08/29/2008) sp-6299, 191 P3d 985

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
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) Supreme Court No. S- 12517
Appellant, )
) Superior Court No.
v. ) 4FA-04-1257 CI
Appellee. ) No. 6299 - August 29, 2008
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Mark I. Wood, Judge.

          Appearances: Kenneth P. Jacobus,  Kenneth  P.
          Jacobus,   P.C.,  Anchorage,  for  Appellant.
          Paul  W. Waggoner, Esq., Law Offices of  Paul
          Waggoner, Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti,  and Winfree, Justices. [Matthews,
          Justice, not participating.]

          CARPENETI, Justice.

          I.   A visitor to a law office was injured when a chair in
the  office  collapsed under him.  He sued the owner of  the  law
office  to  recover  damages  under two  theories  of  liability:
ordinary  negligence and strict products liability.  The superior
court  resolved both issues on summary judgment in favor  of  the
office owner, and dismissed the suit with prejudice.  Because the
injured party failed to establish sufficient grounds under  which
a  fact-finder could conclude that the office owner did  not  act
reasonably  in maintaining his office, and because we decline  to
extend  strict products liability to include the owners of office
furniture, we affirm the decision of the superior court.
     A.   Facts
          Charles  Burnett visited the Fairbanks law  offices  of
Kenneth  Covell  in  May 2002 to participate in  a  meeting  with
Covell  and  one of Covells clients.  When Burnett,  who  weighed
approximately 330 pounds, attempted to sit in one of  the  chairs
in  Covells office, the chair collapsed under him.  The chair was
wood-framed with naugahyde-covered cushioning.  Covell had  owned
the  chair since he bought the practice, including the office and
furniture,  in  2000.  The chair had previously belonged  to  the
attorney  from  whom Covell purchased the practice.   It  appears
that  the  chair had been in the office, and used by clients  and
others,  since  at  least 1986.  Burnett himself  had  previously
visited the office and used the office furniture.  Burnett  seeks
to  recover  damages and costs including medical  expenses,  lost
income, pain and suffering, loss of enjoyment of life, and  other
     B.   Proceedings
          A.   Burnett filed his complaint against Covell in May 2004,
alleging  that Covells negligence led to the chairs collapse  and
Burnetts  injuries.   Covell moved for summary  judgment  on  the
negligence  claim  in November 2005, arguing that  there  was  no
evidence  that  he  had actual or constructive knowledge  of  any
defect  in  the chair, and that therefore there was  insufficient
evidence  to  sustain  a negligence claim  against  him.  Burnett
responded  with  his own motion for partial summary  judgment  in
January  2006.   Burnett asserted that Covell  was  liable  as  a
matter  of  law  under  a  products liability  theory,  and  that
therefore   summary  judgment  against  Covell  was  appropriate.
Burnett  also  argued that Covell breached the duty  of  ordinary
care that he owed to all visitors to his office.
          In  June  2006 the superior court issued its memorandum
decision,  granting  Covells  motion  for  summary  judgment  and
denying  Burnetts  motion.   The superior  court  concluded  that
Covell  could  not  be  found strictly liable  under  a  products
liability theory because products liability applies only  to  the
manufacturer,  seller, or distributor of the  defective  product,
and  Covell  was merely the owner of the product.   The  superior
court  also held that Covell did not breach his duty of  ordinary
care  because  there was no evidence that he  was  aware  of  the
dangerous condition of the chair at the time of the collapse,  or
of  any  environmental  factors that may  have  precipitated  the
collapse.   The  superior court entered  its  final  judgment  on
November 16, 2006, dismissing the case with prejudice.
          We review a grant of summary judgment de novo, and will
affirm  if the record contains no genuine issue of material  fact
and the moving party is entitled to judgment as a matter of law.1
We  draw  all  reasonable inferences of fact from  the  proffered
evidence  against the moving party and in favor of the non-moving
party.2   When  the  superior  courts summary  judgment  decision
involves a pure question of law, we adopt the rule of law that is
most persuasive in light of precedent, reason, and policy.3

     A.   The  Superior  Court  Did Not Err in  Denying  Burnetts
          Motion  for  Partial Summary Judgment on the  Issue  of
          Products Liability.
          Burnett  argues  that the doctrine of  strict  products
liability  should  be extended to apply to a business  owner  who
provides  furniture  for  the use of a  visitor  or  client.   To
support  this  argument,  Burnett  asserts  that  [a]ll  that  is
necessary for a strict liability recovery for a defective product
is  that the product have a defect, and that the defect causes an
injury  to  a human being.  This assertion misstates the  law  by
omitting  the  fact  that  products  liability  applies  only  to
sellers,   manufacturers,  wholesale  or   retail   dealers   and
distributors.4  Therefore, in addition to proving that a  product
has  a  defect and that the defect causes an injury  to  a  human
being,5  a plaintiff seeking a strict products liability recovery
must  also  prove that the defendant is a member of  one  of  the
groups  subject to products liability.6  Burnett does  not  claim
that  Covell  should  be  categorized as a seller,  manufacturer,
dealer,  or  distributor.  Instead, Burnett urges us to  extend[]
the  doctrine  and  principles of strict  liability  to  one  who
furnishes  defective personal property to an  office  visitor  or
          We have extended the scope of strict products liability
in  the  past,7  but  have  refused  to  extend  strict  products
liability  beyond those who place a product into  the  stream  of
commerce.8  A purchaser and owner of office furniture  who  makes
this  furniture  available to clients and guests has  not  placed
this  furniture into the stream of commerce.  Instead, an  office
owner has received the item in the stream of commerce but has not
moved it along.
          The one case identified by Burnett as supportive of his
argument  with  facts  similar to those in the  instant  case  is
distinguishable because liability in that case  was  based  on  a
statute  that does not have a counterpart in Alaska.  In Ferguson
v.  State  Farm  Fire and Casualty Co.,9 the Louisiana  Court  of
Appeals  affirmed  a  products  liability  decision  against   an
employer  whose employee was injured when the office  chair   she
was  sitting  in  collapsed.10  The  Louisiana  court  found  the
employer   liable  under  a  Louisiana  statute  that   allocates
liability  to  individuals  for harm caused  by  items  in  their
possession or ownership.11  Alaska has no comparable statute, nor
have   Alaska  courts  imposed  a  similar  rule  in   allocating
          Burnett  additionally relies on the factors articulated
in  D.S.W.  v. Fairbanks North Star Borough School District12  to
bolster  his  argument  that the public interest  in  maintaining
safety  in  the  workplace would be promoted by  imposing  strict
products  liability  on office owners, but Burnetts  reliance  on
these factors is misplaced.
          The  D.S.W. factors are typically applied retroactively
to  the  specific  facts  of  a case  to  determine  whether  the
          defendant owed a duty of care to the plaintiff.13  Burnett does
not  argue  that we should use the D.S.W. factors  to  find  that
Covell  owed  an  actionable duty to Burnett.   Instead,  Burnett
argues that we should rely on the D.S.W. factors as the basis for
extending strict products liability.  But the D.S.W. factors  are
not  relevant  to  an  inquiry  into  the  policy  rationale  for
extending  the  scope  of  strict  products  liability.    Strict
liability, which does not depend on actual negligence  or  intent
to harm,14 precludes the very factual determinations and balancing
of   considerations  that  are  so  essential  under  the  D.S.W.
analysis.  In addition, the D.S.W. factors rely on considerations
that are not applicable under strict products liability.  We have
held  that [t]he focus in a strict product liability case  is  on
the product, not on the conduct of the defendant,15 but two of the
D.S.W. factors specifically consider the defendants conduct.16
          Burnett  does not identify which of the D.S.W.  factors
he  finds  most supportive of his argument that we should  extend
the   doctrine  of  products  liability  to  owners  who  provide
furniture  to  their clients or other guests.   Instead,  Burnett
points  to  the  ease with which office owners can protect  their
clients from defective furniture, and the relative difficulty for
the  clients to secure the same protections.  Burnett also points
to the habit of people to replace other possessions, such as cars
and  computers,  every  three to five  years.   Finally,  Burnett
highlights  the potential for collapsing chairs to cause  serious
injury,  and  the  availability of insurance to  insulate  office
owners against this risk. Although all of these arguments support
the  recognition of a duty of care owed by office owners to their
clients  and  other guests, none of them suggests a  need  for  a
strict products liability approach.
          Furthermore, the owners of offices and other commercial
spaces in Alaska already owe a duty of care to their clients  and
other guests.  In Alaska, landowners have a duty to use due  care
to   guard   against  unreasonable  risks  created  by  dangerous
conditions  existing on their property.17  This approach  strikes
the  proper balance of recognizing a duty but requiring  specific
factual  findings to establish a breach of this duty.  Plaintiffs
must  show that dangerous conditions existed on the property  and
that  the  property owner did not use due care to  guard  against
unreasonable risks posed by these dangerous conditions.
          Burnett  has  failed to identify policy  considerations
sufficient  to justify extension of strict products liability  to
office  owners who provide furniture to clients and other guests.
Therefore,  the  superior court did not err in  denying  Burnetts
motion  for  partial  summary judgment on  the  issue  of  strict
products liability.
     B.   The  Superior  Court  Did Not Err in  Granting  Covells
          Motion  for  Partial Summary Judgment on the  Issue  of
          The  superior court granted Covells motion for  partial
summary judgment  on Burnetts negligence claim, determining  that
a   business  owner  must  have  either  actual  or  constructive
knowledge  of the dangerous condition of a chair in order  to  be
held  liable for injuries caused by it, and finding that  Burnett
          had not offered any evidence that Covell was aware of the
dangerous condition of the chair at the time it collapsed, or was
aware  of  any  other  factors that would  have  made  the  chair
susceptible to collapse. Burnett argues that although Covell  may
not  have had actual knowledge of the chairs dangerous condition,
there remained a triable question of fact whether Covell breached
his  duty  of care by not replacing the chair because  he  should
have  been aware that the chairs age and the environment in which
it was kept would have made it susceptible to collapse.
          As stated above, office owners in Alaska already have a
duty  of due care to guard against unreasonable risks created  by
dangerous conditions existing on their property.18  The  duty  of
due  care  is  the duty to act with that amount of care  which  a
reasonably  prudent person would use under the  same  or  similar
circumstances.19  Alaska case law is silent on the standards to be
applied  in  the  case of a chair collapse.  The  superior  court
relied  on the decisions of courts of other jurisdictions,  which
required that a business owner have either actual or constructive
knowledge  of the dangerous condition of a chair in order  to  be
held  liable  for  injuries sustained from the collapse  of  that
chair.20  We do not adopt this approach.  Instead, we look to the
ordinary  principles of negligence governing  the  conduct  of  a
landowner.  These principles, which we first articulated in  Webb
v. City and Borough of Sitka,21 require that a landowner or other
owner  of property must act as a reasonable person in maintaining
his  property  in  a reasonably safe condition  in  view  of  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.22
          Under Alaska Rule of Civil Procedure 56(b) and (c),   a
party  against  whom  a claim is asserted may  move  for  summary
judgment,  showing  that  there is no genuine  issue  as  to  any
material  fact and that the movant is entitled to judgment  as  a
matter of law.  When a party seeking summary judgment argues that
there  are  no  genuine issues of material fact in  dispute,  the
adverse  party  must produce admissible evidence that  reasonably
demonstrates that a triable issue of fact exists.23  The  adverse
party  may  not  rest upon mere allegations, but must  set  forth
specific  facts showing that there is a genuine issue of material
fact.24  A genuine issue of material fact exists where reasonable
jurors could disagree on the resolution of a factual issue.25  In
order to establish that there is a genuine issue of material fact
the  adverse  party must offer more than a scintilla of  contrary
          Covell  argued,  in his memorandum in  support  of  his
motion for summary judgment, that Burnett failed to establish the
existence  of any evidence that would show that the chair  had  a
defect  or  that Covell could have discovered any defect  through
the  use  of  reasonable care.  Covell supported these assertions
with  an  affidavit  where he stated that [n]either  one  of  the
chairs  had any apparent defects at the time of the accident  and
[b]oth  my  clients and I have sat in these same chairs countless
times,  and I had never had any indication that either chair  was
unsound prior to the day of the accident.
          Burnett  conceded, in his memorandum in  opposition  to
Covells motion for summary judgment, that he did not believe that
Covell  had actual knowledge of any defect in the chair.  At  the
oral  argument on the motions for summary judgment  the  superior
court  asked  Burnetts counsel to identify any  evidence  in  the
record that could provide a factual basis for the allegation that
Covell  breached  his  duty.   Burnetts  counsel  was  unable  to
identify  evidence  showing  that Covell  had  either  actual  or
constructive  knowledge  of a defect.   Instead,  Burnett  argued
below  and he renews these arguments in his brief on appeal  that
it is a question for the jury whether Covell breached his duty of
due  care  when  he failed to replace a wood framed  chair,  with
glued  joints, that was at least fifteen years old and  that  had
spent  those years subject to continuous use in a dry environment
that may have hastened its deterioration.
            We  have  held  that  issues of  negligence  are  not
ordinarily susceptible to summary judgment and should be resolved
by trial.27  Nevertheless, the party opposing the motion must set
forth  facts  showing  that  the party could  produce  admissible
evidence  that reasonably would demonstrate to the court  that  a
triable  issue of fact exists.28  The superior court, in granting
summary judgment to Covell on the issue of negligence, found that
Burnett  has  presented  no evidence  that  Covell  knew  of  any
environmental factors that made the chair susceptible to collapse
or  that  the chair may have been weakened by age.  Although  the
presence  of  actual or constructive notice may be considered  in
determining negligence, such notice is not by itself  an  element
of  a  prima facie claim of negligence.29  In this case, however,
Burnett fails to establish any evidence of actual or constructive
notice,  and  his  remaining arguments are so  strained  that  no
reasonable person could rely on them as support for a finding  of
negligence.   Burnett  therefore failed to  meet  his  burden  of
establishing  that he could produce admissible  evidence  showing
that  there  was a genuine issue of material fact.  Burnett  does
not  allege  that he could produce any evidence of any  signs  of
physical  deterioration present in the chair   or  in  any  other
furniture in the office of a similar vintage  prior to the chairs
collapse.   Nor  has  Burnett alleged that he could  produce  any
evidence  establishing a common practice among office  owners  of
replacing furniture once it reaches a certain age. In the absence
of  such  concrete evidence, Burnetts unsupported assertion  that
the  environmental conditions within a Fairbanks  office  mandate
the  regular replacement of furniture on a schedule of less  than
fifteen  years is not sufficient to show that there was a genuine
issue  of  material fact as to whether Covell acted  negligently.
Because  Burnett has not shown that he can produce  any  evidence
that  could  cause reasonable jurors to disagree  as  to  whether
Covell breached his duty of due care, the superior court did  not
err in granting Covells motion for summary judgment.
          Because  strict liability does not extend to a business
owner who provides furniture for use by a visitor or client,  and
because  there is no material fact in dispute suggesting evidence
sufficient   to  establish  that  Covell  acted  negligently   in
          maintaining his property, we AFFIRM the superior courts order
dismissing this case with prejudice.

     1    Wilson v. MacDonald, 168 P.3d 887, 888 (Alaska 2007).

     2    Id. at 888-89.

     3     State Farm Mut. Auto. Ins. Co. v. Lestenkof, 155  P.3d
313, 316 (Alaska 2007).

     4    Saddler v. Alaska Marine Lines, Inc., 856 P.2d 784, 787
(Alaska 1993) (citing Restatement (Second) of Torts  402A cmt.  f
(1965))  (refusing to apply strict products liability  to  common
carrier  who  did  not  sell, manufacture,  deal,  or  distribute
allegedly defective products).

     5     See  Butaud v. Suburban Marine & Sporting Goods, Inc.,
543 P.2d 209, 214 (Alaska 1975).

     6     See  Saddler,  856  P.2d  at 787  (citing  Restatement
(Second) of Torts  402A cmt. f (1965)).

     7     See  Bachner  v.  Pearson, 479 P.2d 319,  325-27  n.14
(Alaska 1970) (holding that strict products liability extends  to
leases,  and noting history of expansion of strict tort liability
to  include retailers, manufacturers of component parts, and mass
builder of homes, and to allow recovery by injured bystanders).

     8     See  Pepsi Cola Bottling Co. of Anchorage v.  Superior
Burner Serv. Co.,
427  P.2d  833,  839  &  n.21 (Alaska 1967)  (recognizing  strict
products liability but declining to impose strict liability  upon
those who have agreed to furnish labor or services).

     9    398 So. 2d 72 (La. App. 1981).

     10    Id. at 73.  Burnett lists several additional cases from
other  jurisdictions  that  involve  the  application  of  strict
liability  in  tort  to chairs, but Burnett does  not  offer  any
analysis and these cases are all distinguishable on the basis  of
either the facts or the law applied.

     11     Id. at 74 (quoting La. Civ. Code Ann. art. 2317:   We
are  responsible, not only for the damage occasioned by  our  own
act,  but for that which is caused by the act of persons for whom
we  are  answerable,  or  of the things  which  we  have  in  our

     12     628  P.2d 554 (Alaska 1981). In D.S.W. we  identified
several  factors to be considered when determining the  existence
of  an actionable duty of care: the foreseeability of harm to the
plaintiff;  the  degree of certainty that the plaintiff  suffered
injury;  the  closeness of the connection between the  defendants
conduct and the injury suffered; the moral blame attached to  the
defendants  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.  Id. at 555.

     13     See  City of Kotzebue v. McLean, 702 P.2d 1309,  1315
(Alaska 1985) (applying D.S.W. factors to conclude that under the
particular  facts  of this case city owed an actionable  duty  of
care  to  victim stabbed by perpetrator who had warned police  of
his intent to stab victim).

     14    See Blacks Law Dictionary 934 (8th ed. 2004).

     15    Keogh v. W.R. Grasle, Inc., 816 P.2d 1343, 1352 (Alaska

     16    628 P.2d at 555.

     17    Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 255-56
(Alaska  2000) (quoting Schumacher v. City & Borough of  Yakutat,
946 P.2d 1255, 1258 (Alaska 1997)).

     18    Id.

     19     Leigh v. Lundquist, 540 P.2d 492, 494 (Alaska  1975);
see  also Winschel v. Brown, 171 P.3d 142, 147 n.13 (Alaska 2007)
(noting  that party that created hazard owed a duty of  due  care
that required him to take reasonable steps to protect others from
being harmed by the hazard).

     20     See, e.g., Benham v. King, 700 N.W.2d 314, 318  (Iowa
2005)  ([l]iability is not imposed in the absence of such  actual
or  constructive knowledge of a dangerous condition because  this
knowledge  is  essential  to establish a  breach  of  the  duty);
Gremmels  v.  Tandy Corp., 120 F.3d 103, 105 (8th Cir.  1997)  (a
business  owner  is  not  subject to  liability  on  a  claim  of
negligence if the owner and its agents did not know, or could not
have known, by exercise of reasonable care, of the condition that
caused  the harm); see also George v. Ponderosa Steak House,  632
N.Y.S.2d  893,  894 (N.Y. App. Div. 1995); Rose v.  McMahon,  158
N.W.2d 791, 793 (Mich. App. 1968).

     21     561 P.2d 731 (Alaska 1977) (superseded in part by  AS

     22    Id. at 733.

     23    See McKean v. Hammond, 445 P.2d 679, 684 (Alaska 1968);
see also Isler v. Jensen, 382 P.2d 901, 902 (Alaska 1963).

     24     Martech Constr. Co. v. Ogden Envtl. Servs., Inc., 852
P.2d 1146, 1149 n.7 (Alaska 1993) (citing Rule 56(e)).

     25    McGee Steel Co. v. State for Use & Benefit of McDonald
Indus. Alaska, Inc., 723 P.2d 611, 614 (Alaska 1986).

     26    Martech, 852 P.2d at 1149 n.7.

     27    Webb, 561 P.2d at 735.

     28    See Isler, 382 P.2d at 902.

     29     See  Edenshaw  v. Safeway, Inc., 186  P.3d  568,  570
(Alaska 2008) (holding that actual or constructive notice is  not
element of prima facie case in  slip-and-fall action).

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