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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 (8/29/2008) sp-6299
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| CHARLES E. BURNETT, | ) |
| ) Supreme Court No. S- 12517 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4FA-04-1257 CI |
| ) | |
| KENNETH COVELL, | ) O P I N I O N |
| ) | |
| 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. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
damages.
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.
III. STANDARD OF REVIEW
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
IV. DISCUSSION
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
client.
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
liability.
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
Negligence.
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
evidence.26
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.
V. CONCLUSION
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
custody.).
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
1991).
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
09.65.200).
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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