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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Donahue v. Ledgends, Inc. (8/1/2014) sp-6932

Donahue v. Ledgends, Inc. (8/1/2014) sp-6932

         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  


CLAIRE A. DONAHUE,                                   )  

                                                     )        Supreme Court Nos. S-14910/14929  

                           Appellant and             )  

                           Cross-Appellee,           )  

                                                     )        Superior Court No. 3AN-10-07305 CI  

                  v.                                 )  

                                                     )        O P I N I O N  

LEDGENDS, INC. d/b/a ALASKA                          )  

ROCK GYM,                                            )  

                                                     )        No. 6932 - August 1, 2014  

                           Appellee and              )  

                           Cross-Appellant.          )  


                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial District, Anchorage, Andrew Guidi, Judge.  

                  Appearances:         Christine      S.   Schleuss,       Law     Office      of  

                  Christine S. Schleuss, Anchorage, for Appellant and Cross- 


                  Appellee.  Tracey L. Knutson, Girdwood, for Appellee and  



                  Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.   

                  MAASSEN, Justice.  


                  This case arises from an injury at a climbing gym.  Claire Donahue broke  


her tibia during a class at the Alaska Rock Gym after she dropped approximately three  


to four-and-a-half feet from a bouldering wall onto the floor mat.  Before class Donahue  


----------------------- Page 2-----------------------

had been required to read and sign a document that purported to release the Rock Gym  


from any liability for participants' injuries.  

                   Donahue  brought  claims  against  the  Rock  Gym  for  negligence  and  

violations of the Uniform Trade Practices and Consumer  Protection Act (UTPA).  The  


Rock Gym moved for summary judgment, contending that the release bars Donahue's  


negligence claim.  It also moved to dismiss the UTPA claims on grounds that the act  

does not apply to personal injury claims and that Donahue failed to state a prima facie  

case for relief under the act. Donahue cross-moved for partial summary judgment on the  


enforceability of the release as well as the merits of her UTPA claims.  The superior  


court granted the Rock Gym's motion and denied Donahue's, then awarded attorney's  


fees to the Rock Gym under Alaska Civil Rule 82.  

                   Donahue appeals the grant of summary judgment to the Rock Gym; the  

Rock Gym also appeals, contending that the superior court should have awarded fees  


under Alaska Civil Rule 68 instead of Rule 82.  We affirm the superior court on all  




                   Ledgends, Inc. does business as the Alaska Rock Gym, a private indoor  


facility that is open to the public. Its interior walls have fixed climbing holds and routes;  


for a fee, it provides classes and open gym or free climbing time.  There are signs posted  

around the Rock Gym warning of the  dangers of climbing, including falling; at her  

deposition Donahue did not dispute that the signs were there when she visited the gym.  

                   Donahue had been thinking about trying rock climbing for several years,  


and she finally decided in March 2008 to attend a class at the Rock Gym called "Rockin'  


Women."  She testified that she chose the class because she thought it could be tailored  

to specific skill levels, and because she "got the impression [from the advertisements]  


                                                            - 2 -                                                      6932

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that that is the type of group it was, that it was a . . . safe way to learn to climb."  She also  


testified she understood that the essential risk of climbing is falling.  

                   Donahue  had  no  rock  climbing  experience,  but  she  was  an  occasional  

runner  and  cyclist  and  had  pursued  other  high-risk  athletic  activities  such  as  kite- 


boarding.  She had been a river guide on the Colorado River after college.  She had  


engaged in physical occupations such as commercial fishing and construction.   She  

testified that she understood the nature of risky activities and felt competent to decide  

about them for herself.  In connection with other recreational activities, she had signed  


releases and waivers similar to the one she signed at the Rock Gym.  She testified that  

she understood that parties who sign contracts generally intend to be bound by them.  


                   When Donahue arrived at the Rock Gym for her first class, she was given  


a document entitled "Participant Release of Liability, Waiver of Claims, Assumption of  

Risks,  and  Indemnity  Agreement  -  Alaska  Rock  Gym."    She  was  aware  of  the  

document's nature and general intent but testified that although she signed it voluntarily,  

she did not read it closely.  

                   The release contains nine numbered sections on two single-spaced pages.  

There is also an unnumbered introductory paragraph; it defines the Rock Gym to include,  

among  others,  its  agents,  owners,  participants,  and  employees,  as  well  as  "all  other  

persons or entities acting in any capacity on its behalf."  

                   Section one of the release contains three paragraphs.  The first recites the  


general risks of rock climbing, including injury and death, and explains that these risks  

are essential to the sport and therefore cannot be eliminated.  The second paragraph lists  


about a dozen specific risks inherent in rock climbing, including "falling off the climbing  


wall," "impacting the ground," "the negligence of other[s]," and "my own negligence[,]  


inexperience, . . . or fatigue."  The third paragraph asserts that the gym and its instructors  

                                                            - 3 -                                                     6932

----------------------- Page 4-----------------------

"seek safety, but they are not infallible."  It describes some errors instructors might  

make, including being ignorant of a participant's abilities and failing to give adequate  

warnings or instructions.  The final sentence in the third paragraph reads, "By signing  


this [release], I acknowledge that I AM ULTIMATELY RESPONSIBLE for my own  


safety during my use of or participation in [Rock Gym] facilities, equipment, rentals, or  



                    Section two begins, "I expressly agree and promise to accept and assume  


all the risks . . ."; it then highlights the voluntary nature of participation in Rock Gym  



                    Section three is the clause that releases the Rock Gym from liability (the  


releasing clause).  It reads in full,  

                    I hereby voluntarily release, forever discharge, and agree to  


                    indemnify and hold harmless the [Rock Gym] from any and  


                    all claims, demands, or causes of action, which are in any  


                    way connected with my participation in these activities or my  

                    use  of  [the  Rock  Gym's]  equipment,  rentals  or  facilities,  

                    including  any  such  claims  which  allege  negligent  acts  or  

                    omissions of [the Rock Gym].  

                    The next six sections of the release address other issues:  indemnification  


for attorney's fees, certification that the participant is fit to climb, permission to provide  


first  aid,  permission  to  photograph  for  promotional  purposes,  the  voluntariness  of  

participation and signing the release, and jurisdiction for claims arising from the release.  


                    The ultimate paragraph is printed in bold.  It reads in part,  

                    By signing this document, I acknowledge that if anyone is  


                    hurt   or   killed   or   property   is   damaged   during   my  

                    participation  in  or  use  of  [Rock  Gym]  activities  or  

                    premises or facilities or rental equipment, I may be found  


                    by a court of law to have waived my right to maintain a  

                                                             - 4 -                                                      6932

----------------------- Page 5-----------------------

                    lawsuit against [the Rock Gym] on the basis of any claim  


                    from which I have released them herein.  

                    Finally, centered on the second page, in bold capital letters directly above  


the signature line, the release reads: "I HAVE HAD SUFFICIENT OPPORTUNITY  






                    Donahue's hand-printed name and the date appear on the first page of the  

release, and her initials are at the bottom of the page; her signature appears on the second  


page, along with her printed name, her contact information, and the date.  

                    Donahue completed her first class on harnessed climbing on March 23,  

2008, and returned for a second class on May 11.  When class began she was told that  


the day's focus would be on bouldering, or unharnessed climbing on low walls.  She did  


not express any hesitation.  She climbed for almost two hours, successfully ascending  

and descending a number of routes.  During this time she saw other people drop from the  


wall without injury.  After another successful ascent near the end of the lesson, she felt  


unable to climb down using the available holds. Her feet were somewhere between three  


and four-and-a-half feet from the ground.  Her instructor suggested that she drop to the  


mat and told her to be sure to bend her knees.  Donahue landed awkwardly and broke her  

tibia in four places.  She was attended to immediately by Rock Gym personnel and a  

physician who happened to be present.  

                    The  Rock  Gym  had  run  various  advertisements  during  the  two  years  

preceding Donahue's accident, using a number of different slogans.  One newspaper ad,  


running on at least three occasions, stated:  "[T]the only safe place in town to hang out."  


Another Rock Gym ad showed an adult bouldering and a child climbing while harnessed;  


its text contained the same slogan and added, in part, "Trust us, it still exists. . . . [E]very  


                                                             - 5 -                                                       6932

----------------------- Page 6-----------------------

child in your family will be reminded of what it's all about - friends and fun."  A third  


ad  described  climbing  programs  for  everyone  in  the  family  and  said,  "[Y]ou  have  


nothing to lose and everything to gain."  In an affidavit, Donahue testified she had read  


these ads.  

                    Donahue sued the Rock Gym for negligent failure to adequately train and  


supervise its instructors.  She alleged that the Rock Gym was liable for its employee's  

negligent instruction to drop from the bouldering wall.  She also alleged a violation of  


the  Unfair  Trade  Practices  and  Consumer  Protection  Act,  contending  that  the  Rock  


Gym's advertisements "misleadingly advertised [the gym] as a safe place where users  

of its services had nothing to lose and everything to gain."  

                    The Rock Gym moved for summary judgment on all of Donahue's claims.  


She opposed the motion and cross-moved for partial summary judgment herself, arguing  


that the Rock Gym had violated the UTPA as a matter of law and that the release she had  

signed was null and void.  

                    The superior court granted the Rock Gym's motion and denied Donahue's  


cross-motion.  It then granted the Rock Gym, as prevailing party, partial attorney's fees  


under Civil Rule 82(a)(3).  


                    We review grants of summary judgment de novo, determining whether the  



record presents any genuine issues of material fact.  


                                                                               In making this determination, we  



construe  the  facts in favor of the non-moving party.   If the record fails to reveal a  

          1         Hill v. Giani , 296 P.3d 14, 20 (Alaska 2013) (citing Yost v. State, Div. of   

Corps., Bus. & Prof'l Licensing, 234 P.3d 1264, 1272 (Alaska 2010)).  

          2         Id. (citing McCormick v. City of Dillingham , 16 P.3d 735, 738 (Alaska  


                                                             - 6 -                                                           6932  

----------------------- Page 7-----------------------

genuine factual dispute and the moving party was entitled to judgment as a matter of law,  


the trial court's grant of summary judgment must be affirmed.3  


                     We decide questions of law, including statutory interpretation, using our  

independent  judgment.4  

                                           We  will  adopt  the  most  persuasive  rule  of  law  in  light  of  


precedent, reason, and policy.  


                                                   This requires us, when interpreting statutes, to "look to  


the meaning of the language, the legislative history, and the purpose of the statute."   

                     "A superior court's determination whether waiver occurred is a question  


of fact that we review for clear error."   



           3         Kelly v. Muncipality of Anchorage , 270 P.3d 801, 803 (Alaska 2012).  

           4          Therchik v. Grant Aviation, Inc., 74 P.3d 191, 193 (Alaska 2003).  

           5         ASRC Energy Servs. Power & Commc'ns, LLC v. Golden Valley Electric                            

Ass'n , 267 P.3d 1151, 1157 (Alaska 2011).  

           6         Id.  

           7         Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).  

                                                                  - 7 -                                                           6932

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          A.	       The Release Is Enforceable And Bars Donahue's Negligence Claims.  

                    Three  cases  define  Alaska  law  on  pre-activity  releases  from  liability.8  



These cases consistently state that such releases are not per se invalid;  in each of the 



cases, however, we concluded that the release at issue did not bar the plaintiff's claim.  


                    Kissick v. Schmierer involved a plane crash that caused the deaths of all  

                             10  The three passengers had signed a covenant not to sue before they  

four people aboard.                                             

boarded  the  plane.11    They  agreed  in  the  release  not  to  bring  a  claim  "for  any  loss,  


damage, or injury to [their] person or [their] property which may occur from any cause  

                    12  When the passengers' surviving spouses filed wrongful death claims  


          8         Ledgends,  Inc.  v.  Kerr ,  91  P.3d  960  (Alaska  2004); Moore   v.  Hartley  

Motors , Inc.,   36 P.3d 628 (Alaska 2001); Kissick v. Schmierer , 816 P.2d 188 (Alaska  


          9         Kerr , 91 P.3d at 961-62 (noting that "under  Alaska law pre-recreational  

exculpatory releases are held to a very high standard of clarity");  Moore , 36 P.3d at 631  


(noting that "an otherwise valid release is ineffective when releasing a defendant from  


liability would violate public policy" (emphasis added)); Kissick, 816 P.2d at 191 ("A  

promise  not  to  sue  for  future  damage  caused  by  simple  negligence  may  be  valid."  



 143-45 (3d ed. 1972)); see also Mitchell v. Mitchell, 655  P.2d 748, 751 (Alaska 1982)  


(upholding provision not to sue in settlement agreement and noting that, "[a]s a matter  

of law, . . . a valid release of all claims will bar any subsequent claims covered by the  



          10        Kissick , 816 P.2d at 188.  

          11        Id. at 189.  

          12        Id.  

                                                             - 8 -	                                                     6932

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against the pilot, their claims were allowed to proceed despite the release.                                          We ruled  


that "[i]ntent to release a party from liability for future negligence must be conspicuously  


and  unequivocally  expressed."                        We  also  held  that  a  release  must  use  the  word  

"negligence" to establish the required degree of clarity, something the release in Kissick  



did not do.          Further, since liability for "death" was not specifically disclaimed and the  


term  "injury"  was  ambiguous,  we  held  that  the  release  did  not  apply  to  claims  for  


wrongful death, construing it against the drafter.                             

                    The second case, Moore v. Hartley Motors , involved an injury during a  



class on driving all-terrain vehicles (ATVs).                         We first addressed whether the plaintiff's  

                                                         18  We noted that the type of service involved was  

signed release violated public policy.     

neither essential nor regulated by statute;19 these factors, along with the voluntariness of  



the  plaintiff's  participation,  persuaded  us  that  the  defendants                                  had  no  "decisive  

          13        Id.

          14        Id. at 191 (citations omitted).


                    Id. (citing W. PAGE KEETON , ET AL ., PROSSER AND KEETON ON THE LAW OF  

TORTS   68, at 483-84 (5th ed.1984) (footnotes omitted)).  

          16        Id. at 191-92.  

          17        36 P.3d 628, 629 (Alaska 2001).  

          18        Id. at 631-32.  

          19        Id. at 631-32 (noting that ATV riding is similar to parachuting, dirt biking,                   

and scuba diving, for which releases have been upheld in other jurisdictions).  

          20        The defendants included the dealer that sold the plaintiff the ATV and  


referred her to the safety course, the ATV Safety Institute that developed the curriculum,  


and the individual instructor.  Id. at 629.  

                                                               - 9 -                                                        6932

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advantage in bargaining strength."                     We therefore held that the release did not violate   

public policy.22  

                    We  did  decide,  however,  that  the  release  did  not  conspicuously  and  


unequivocally express an intent to release the defendants from liability for the cause of  

the exact injury that occurred - a rollover when the plaintiff drove over a big rock  


hidden in tall grass.             The release covered the inherent risks of ATV riding, but we  


found that it also included "an implied and reasonable presumption that the course [was]  

                                            24  We found there to be fact questions about whether "the  

not unreasonably dangerous."                                                                         

course posed a risk beyond ordinary negligence related to the inherent risks of off-road  

ATV  riding  assumed  by  the  release,"  and  we  held  that  summary  judgment  for  the  

defendants on the basis of the release was therefore improper.25  

                    The third case, Ledgends, Inc. v. Kerr , involved the same rock gym as this  



case.      It involved a similar injury as well, sustained when the plaintiff fell from a  


bouldering wall.27  Unlike Donahue, however, who landed squarely on the floor mat, the  


plaintiff in Kerr was allegedly injured when her foot slipped through the space between  


          21       Id. at 631-32.  

          22       Id.  

          23       Id. at 632.  

          24       Id.  

          25       Id. at 633-34.  

          26        91 P.3d 960 (Alaska 2004).  

          27       Id. at 961.  

                                                            -  10 -                                                     6932

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two floor mats.           The plaintiff alleged the gym knew of the defect in the landing area but  

had failed to fix it.29  


                    The superior court, whose order we approved and attached as an appendix  

to our opinion, cited Kissick for the notion that a pre-activity release for tortious conduct  



must be "clear, explicit, and comprehensible  in  each of its essential details." 


superior court also noted the requirement that "such an agreement, read as a whole, must  

clearly  notify  the  prospective  releasor  or  indemnitor  of  the  effect  of  signing  the  



release."        With these principles in mind, the superior court pointed to language in the  

release that was problematic because it was internally inconsistent:  the release stated that  


the gym would try to keep its facilities safe and its equipment in good condition, but it  

simultaneously disclaimed liability for actions that failed to meet such standards.32   The  


superior court construed this ambiguity against the drafter and held that the release was  

not valid as a bar to the plaintiff's negligence claims, a holding we affirmed.33  

                    In this case, the superior court concluded that Kissick , Moore , and Kerr ,  

considered together, meant that "an effective liability release requires six characteristics."  

We agree with the superior court's formulation of the list:  

          28       Id.  

          29       Id.  

          30       Id.  at 961-62   (quoting Kissick v. Schmierer , 816 P.2d 188, 191 (Alaska   

1991)) (internal quotation marks omitted).  

          31       Id . at 962 (quoting Kissick , 816 P.2d at 191) (internal quotation marks  


          32       Id. at 963.



                                                            -  11 -                                                     6932

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                     (1) the risk being waived must be specifically and clearly set  

                     forth (e.g. death, bodily injury, and property damage); (2) a  

                     waiver of negligence must be specifically set forth using the  

                     word "negligence"; (3) these factors must be brought home  


                     to the releasor in clear, emphasized language by using simple  


                     words  and  capital  letters;  (4)  the  release  must  not  violate  


                     public policy; (5) if a release seeks to exculpate a defendant  

                     from  liability  for  acts  of  negligence  unrelated  to  inherent  


                     risks, the release must suggest an intent to do so; and (6) the  


                     release agreement must not represent or insinuate standards  

                     of safety or maintenance.  


The superior court found that each of these characteristics was satisfied in this case, and  

again we agree.34  

           34        Donahue does not challenge the release on public policy grounds, so the     

fourth  characteristic  of   a  valid  release   is  satisfied  here.     Alaska  recognizes  that  

recreational releases from liability for negligence   are   not void as a matter of public  

policy, because to hold otherwise would impose unreasonable burdens on businesses  

whose patrons want to engage in high-risk physical activities.  Kissick, 816 P.2d at 191  


("A promise not to sue for future damage caused by simple negligence may be valid."  


(internal citations and quotation marks omitted)).  The New Jersey Supreme Court, in a  


case involving claims against a health club, held that liability releases in gym cases do  


not violate public policy in part because gyms remain liable for their gross negligence  

or recklessness - levels of culpability not alleged in this case.  Stelluti v. Casapenn  


Enters. , 1 A.3d 678, 681 (N.J. 2010); see also City of Santa Barbara v. Super. Ct., 161  


P.3d 1095, 1102-03 (Cal. 2007) (surveying jurisdictions and concluding that "[m]ost, but  

not all" hold that releases of ordinary negligence in recreational activities do not violate  


public policy but "the vast  majority of decisions state or hold that such agreements  


generally are void" if they attempt to release "aggravated misconduct" such as gross  



                                                                -  12 -                                                          6932

----------------------- Page 13-----------------------

                     1.	       The risks being waived (falling and instructor negligence) are  

                               specifically and clearly set forth.  

                    A conspicuous and unequivocal statement of the risk waived is the keystone  



of a valid release.             Here, the release clearly and repeatedly disclosed the risk of the  


specific injury at issue:  injury from falling while climbing.  The following are excerpts  

from the Rock Gym's release:  

                    I specifically acknowledge that the inherent risks associated  


                    with rock climbing . . . include[], but [are] not limited to:  


                    falling   off   of   the   climbing   wall,   .   .   .   impacting   the  

                    ground . . . , general slips/trips/falls or painful crashes while  

                    using any of the equipment or walls or bouldering areas or  

                    landing pits or work-out areas or the climbing structures or  

                    the premises at large, climbing out of control or beyond my  


                    or another participant's limits, . . . my own negligence or  

                    inexperience, dehydration or exhaustion or cramps or fatigue  


                     . . . .  

To  the  extent  that  the  risk  at  issue  is  the  risk  of  hitting  the  ground  after  falling  (or  


dropping  in  what  is  essentially  an  intentional  fall),  the  first  characteristic  of  a  valid  

release is satisfied by this language.  

                    Rather  than  focusing  on  her  injury,  however,  Donahue  focuses  on  its  


alleged cause, which she argues was the negligent training and supervision of Rock Gym  


instructors and the consequently negligent instructions she was given.  She claims that  


the release did not specifically and clearly set forth this risk, and that she was therefore  


unaware that she was waiving the right to sue for instructor negligence.   

                    But  the  release  did  cover  this  risk.    The  first  paragraph  expressly  


incorporates "employees" into the definition of the entity being released.  The release  


further warns that Rock Gym "instructors, employees, volunteers, agents or others . . .  




                    Kerr , 91 P.3d at 961; Moore v. Hartley Motors, Inc., 36 P.3d 628, 632  

(Alaska 2001);  Kissick, 816 P.2d at 191.  

                                                              -  13 -	                                                          6932  

----------------------- Page 14-----------------------


are not infallible" and that "[t]hey may give inadequate warnings or instructions."  In its  


on-site interactions with the public, the Rock Gym necessarily acts through its instructors  


and other employees; Donahue knew she would be taking a class and that classes require  


instructors.  It would not be reasonable to conclude that the Rock Gym sought a release  


only of those claims against it that did not involve the acts or omissions of any of its  

employees, and we cannot construe the release in that way.36  We agree with the superior  


court's conclusion that "the Release clearly expresses that it is a release of liability for  

the  negligence  of  the  releasor-participant,  other  participants,  climbers,  spotters  or  

visitors, as well as [the Rock Gym's] negligence, including [Rock Gym] employees."  


                         Donahue also argues that she could not understand the risks involved due  

to the release's appearance and presentation.  However, even viewing the facts in the  


light  most  favorable  to  her,  the  record  does  not  support  her  argument.    Although  

Donahue did not carefully read the release before signing it,37 she was aware she was  

signing a liability release.  She has signed a number of such documents in the past and  


was  familiar  with  their  general  purpose.                                        When  asked  to  read  the  release  at  her  


deposition, she testified that she understood the pertinent risks it described.  There is no  

reason to believe that she would have found it less comprehensible had she read it at the  

time she signed it.  

             36          See Kahn v. E. Side Union High Sch. Dist., 75 P.3d 30, 40 (Cal. 2003)                                                

(holding that "the risks associated with learning a sport may themselves be inherent risks                                                 

of the sport. . . . [A]nd . . . liability should not be imposed simply because an instructor           

asked the student to take action beyond what, with hindsight, is found to have been the                                  

student's abilities" (internal citations and quotation marks omitted)).  

             37          Failure to read a contract in detail before signing it is no defense to its  

enforceability.  Lauvetz v. Alaska Sales & Serv. , 828 P.2d 162, 164-65 (Alaska 1991).  

                                                                             -  14 -                                                                      6932

----------------------- Page 15-----------------------


                    2.	       The waiver of negligence is specifically set forth using the word  


                    Kissick  and  Kerr  both  emphasize  that  a  valid  release  from  liability  for  

negligence claims requires use of the word "negligence."38  This requirement is met here.  


                    The Rock Gym's release first lists negligence among the inherent risks of  


climbing ("the negligence of other climbers or spotters or visitors or participants" and  

"my  own  negligence").    It  then  provides:    "I  hereby  voluntarily  release,  forever  


discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all  

claims,  demands,  or  causes  of  action,  .  .  .  including  any  such  claims  which  allege  

negligent acts or omissions of [the Rock Gym]."  (Emphasis added.)  The phrase "any  

and all claims" is thus expressly defined to include claims for negligence.  


                    Cases from other jurisdictions support the conclusion that the language in  


the Rock Gym's release covers all of Donahue's negligence claims.  In  Rosencrans v.  


Dover Images, Ltd. , the plaintiff was injured on a motocross track after falling from his  



bike and being struck by two other riders.                      A California Court of Appeal concluded that  


the  signed  waiver  releasing  the  track  from  liability  for  "any  losses  or  damages  .  .  .  

whether  caused  by  the  negligence  of  [the  Releasees]  or  otherwise"  precluded  the  


plaintiff's claim "for ordinary negligence as well as negligent hiring and supervision" of  


employees at the racetrack (though it did not release the track from liability for gross  


negligence - a claim not made here).                          

          38	       Kerr , 91 P.3d at 961; Kissick, 816 P.2d at 191.  

          39         122 Cal. Rptr. 3d 22, 27 (Cal. App. 2011).  

          40        Id. at 30.  See also Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex.                        

App.  2002)   ("Negligent  hiring,  retention,  and   supervision   claims   are  all  simple  

negligence causes of action based on an employer's direct negligence rather than on  


                                                             -  15 -	                                                      6932

----------------------- Page 16-----------------------


                    In short, the requirement that a waiver of negligence be specifically set out  

using the word "negligence" is satisfied by the Rock Gym's release.  

                    3.	       The important factors are brought home to the releasor in clear,  

                              emphasized language with simple words and capital letters.  


                    Donahue argues that although "negligence" is expressly mentioned and  

disclaimed in the release, its placement at the end of long sentences written in small font  

rendered its presence meaningless to her.  Quoting a California case, she argues that  

when the risk of negligence is shifted, a layperson "should not be required to muddle  

through complex language to know that valuable, legal rights are being relinquished."41  


Donahue also cites New Hampshire and Washington cases in which the structure and  


organization of releases obscured the language that purported to shield the defendants  



from claims.           These cases considered factors such as "whether the waiver is set apart  


or hidden within other provisions, whether the heading is clear, [and] whether the waiver  


is set off in capital letters or in bold type."                      In one Washington case, a release was  

invalidated because the releasing language was in the middle of a paragraph.44  

                    Fundamentally,  Donahue  argues  that  the  Rock  Gym's  release  was  so  


ambiguous and laden with legalese that she lacked any real ability to understand that she  


vicarious liability." (citations omitted)).  

          41        Conservatorship of the  Estate of Link v. Nat'l Ass'n for Stock Car Auto             

Racing, Inc.,  205 Cal. Rptr. 513, 515 (Cal. App. 1984).  



                    See  Wright v. Loon Mtn. Recreation Corp.,  663 A.2d 1340, 1342 (N.H.  

1995); Johnson v. UBAR, LLC , 210 P.3d 1021, 1023 (Wash. App. 2009).  



                    Johnson , 210 P.3d at 1023 (citing Baker v. City of Seattle , 484 P.2d 405  

(Wash. 1971)).  

          44        Baker, 484 P.2d at 407.  

                                                            -  16 -	                                                     6932

----------------------- Page 17-----------------------


was  agreeing  to  release  the  Rock  Gym  from  the  negligence  of  its  instructors.    She  

complains of the release's "lengthy, small-printed, and convoluted" language which  

required a "magnifying glass and lexicon" to decipher.  She points out that the clause  

purporting to release the Rock Gym from liability is not obvious or emphasized through  


bold print or capital letters.  She testified at her deposition that she believed the waiver  

shielded the gym only "from frivolous lawsuits, from people blaming them for something  

that's not their fault."  

                     It is true that the release's text is small and the releasing clause is in the  


middle of the document toward the bottom of the first page.  But the clauses addressing  

negligence do not appear to be "calculated to conceal," as Donahue argues.  Though not  

highlighted, they are in a logical place where they cannot be missed by someone who  

reads the release.  The clause releasing the Rock Gym from liability is a single sentence  



set out as its own numbered paragraph, and it is not confusing or needlessly wordy. 

The  inherent  risks  of  climbing  are  enumerated  in  great  detail  but  using  ordinary  


                                                                             Several sentences are devoted to the  

descriptive language that is easy to understand. 

          45         Paragraph 3 of the release reads:                     "I hereby voluntarily release, forever     

discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all         

claims,   demands,   or   causes   of   action,   which   are   in   any   way   connected  with  my  

participation in these activities or my use of [the Rock Gym's] equipment, rentals or  

facilities, including any such claims which allege negligent acts or omissions of [the  

Rock Gym]."  



                     Paragraph 1 of the release lists the inherent risks of climbing as including  

"but . . . not limited to":  

                     falling off of the climbing wall, being fallen on or impacted  

                    by   other   participants,   poor   or   improper   belaying,   the  


                    possibility that I will be jolted or jarred or bounced or thrown  


                    to  and  fro  or  shaken  about  while  climbing  or  belaying,  

                     entanglement in ropes, impacting the ground and/or climbing  



                                                              -  17 -                                                        6932

----------------------- Page 18-----------------------


role of the gym's "instructors, employees, volunteers, agents or others," stating that they  


"have difficult jobs to perform," that they "seek safety, but they are not infallible," and  


that they may "be ignorant of mine or another participant's fitness or abilities" and "may  

give inadequate warnings or instructions."   


                    Because releases should be read "as a whole" in order to decide whether  

they "clearly notify the prospective releasor or indemnitor of the effect of signing the  



agreement,"          we consider these provisions in the context of the entire document.  Three  


other sections of emphasized text mitigate Donahue's complaints about ambiguity and  


incomprehensibility.    First,  section  one  reads  in  part,  "I  AM  ULTIMATELY  


RESPONSIBLE for my own safety during my use of or participation in [Rock Gym]  


facilities, equipment, rentals or activities" (bold in original).  This alone makes it clear  

to the reader that the Rock Gym, to the extent it is allowed to do so, intends to shift  


                    wall, loose or dropped or damaged ropes or holds, equipment  


                    failure,  improperly  maintained  equipment  which  I  may  or  


                    may not be renting from [the Rock Gym], displaced pads or  

                    safety equipment, belay or anchor or harness failure, general  

                    slips/trips/falls  or  painful  crashes  while  using  any  of  the  


                    equipment  or  walls  or  bouldering  areas  or  landing  pits  or  

                    work-out areas or the climbing structures or the premises at  

                    large,  climbing  out  of  control  or  beyond  my  or  another  

                    participant['s]  limits,  the  negligence  of  other  climbers  or  

                    spotters  or  visitors  or  participants  who  may  be  present,  

                    participants  giving  or  following  inappropriate  "Beta"  or  

                    climbing advice or move sequences, mine or others' failure  

                    to follow the rules of the [Rock Gym], my own negligence or  


                    inexperience, dehydration or exhaustion or cramps or fatigue  


                    -  some  or  all  of  which  may  diminish  my  or  the  other  

                    participants' ability to react or respond.   



                    Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991).  

                                                            -  18 -                                                      6932

----------------------- Page 19-----------------------


responsibility to the climber regardless of the actions of anyone else.  Second, a final  


unnumbered paragraph, set out in bold letters, reads in part:  "By signing this document,  

I acknowledge that if anyone is hurt or killed or property is damaged during my  


participation in or use of [Rock Gym] activities or premises or facilities or rental  


equipment, I may be found by a court of law to have waived my right to maintain  


a lawsuit against [the Rock Gym] on the basis of any claim from which I have  


released them herein." And finally, directly above the lines where Donahue entered her  


signature, her printed name, her contact information, and the date, the release reads, in  


bold and capital letters, "I HAVE READ AND UNDERSTOOD [THE RELEASE],  


AND I AGREE TO BE BOUND BY ITS TERMS."  If Donahue had read the release  


and  found  herself  genuinely  confused  about  any  of  its  terms,  she  was  prominently  

notified that she should inquire about it before signing.  

                     The  New  Hampshire  case  on  which  Donahue  relies,  Wright  v.  Loon  


Mountain Recreation Corp ., examined the release in question to determine whether "a  


reasonable  person  in  the  position  of  the  plaintiff  would  have  understood  that  the  


agreement clearly and specifically indicated the intent to release the defendant from  



liability for its own negligence."                   Applying that test here, we conclude that a reasonable  


person in Donahue's position could not have overlooked or misunderstood the release's  


intent  to  disclaim  liability.    Our  case  law's  third  characteristic  of  a  valid  release  is  

therefore satisfied.  



                     663 A.2d 1340, 1343-44 (N.H. 1995); see also Johnson , 210 P.3d at 1021  

(holding reasonable persons could disagree about the conspicuousness of the release  

provision in the waiver, and remanding for trial).  

                                                               -  19 -                                                            6932  

----------------------- Page 20-----------------------

                    4.	        Regardless  of  whether  falling  and   instructor  negligence  are  

                               inherent risks of rock climbing, the release specifically disclaims         

                               liability for them.  


                     The fifth characteristic set forth by the superior court                            is that "if a release  

seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent  


                                                                                   This requirement stems from the  

risks, the release must suggest an intent to do so." 

release's ill-defined scope in Moore ; the injury that occurred - arguably caused by an  

unreasonably  dangerous  ATV  training  course  -  was  not  obviously  included  in  the  


inherent risks of riding ATVs, which the signed release did intend to cover.                                             Here, in  


contrast, the injury and its alleged causes are all expressly covered by the release, as  

explained  above.    Negligence  claims  are  specifically  contemplated,  as  are  "falls,"  

"impact" with the ground, and "inadequate warnings or instructions" from Rock Gym  

instructors.  Regardless  of  whether  these  are  inherent  risks  of  climbing,  they  are  


specifically covered by the release.   This characteristic of a valid release is therefore  



                     5.	       The release does not represent or imply standards of safety or  

                               maintenance that conflict with an intent to release negligence  



                     The sixth characteristic of a valid release is that it does not imply standards  



of safety or maintenance that conflict with an intent to waive claims for negligence. 


Rock Gym argues that nothing in the release confuses its purpose, unlike the release at  

            49        As noted above, the fourth characteristic of a valid release - that it not  

 violate public policy - is not at issue on this appeal.  See supra note 34.  

            50        See Moore v. Hartley Motors, Inc., 36 P.3d 628, 633-34 (Alaska 2001).  

            51        Id.  

            52        See Ledgends, Inc. v. Kerr, 91 P.3d 960, 962-63 (Alaska 2004).  

                                                                - 20 -	                                                       6932

----------------------- Page 21-----------------------


issue in Kerr, which at least implicitly promised that equipment would be kept "in good  

                53   We agree.   In fact, far from providing assurances of safety, the release  


highlights  the  fallibility  of  the  Rock  Gym's  employees,  equipment,  and  facilities,  

explicitly stating that the equipment may "fail," "malfunction[,] or be poorly maintained"  

and that the staff is "not infallible," may be ignorant of a climber's "fitness or abilities,"  

and "may give inadequate warnings or instructions."  


                   Donahue agrees that the release is not internally inconsistent, but she argues  


that the advertisements run by the Rock Gym had the same confounding impact on her  


understanding of it as the release's language about equipment maintenance had in Kerr . 


 She contends that she relied on the ads' assurances that the gym was "a safe place" and  


the class "would be a safe way to learn to climb" when she enrolled in the climbing class.  

She argues that these assurances created ambiguity that, as in Kerr , requires that the  

release be interpreted in a less exculpatory way.  

                   Although  extrinsic  evidence  may  be  admissible  as  an  aid  to  contract  

                    54 the release here clearly defines climbing as an inherently risky activity.  


And we have said that  

                   where one section deals with a subject in general terms and  


                   another  deals  with  a  part  of  the  same  subject  in  a  more  

                   detailed way, the two should be harmonized if possible; but if  


                   there is a conflict, the specific section will control over the  



           53       Id. at 963.  

           54       Norville v. Carr-Gottstein Foods Co. , 84 P.3d 996, 1004 (Alaska 2004)   

 (citing Municipality of Anchorage v. Gentile , 922 P.2d 248, 256 (Alaska 1996)).  

           55       Id. (quoting Estate of Hutchinson , 577 P.2d 1074, 1075 (Alaska 1978)).  

                                                            - 21 -                                                     6932

----------------------- Page 22-----------------------

Were we to give the Rock Gym's advertisements any weight in our analysis of the release,               

we would not find that their use of the word "safe" overrode the release's very clear   

warnings about the specific risks of climbing.   

                       Because           the      advertisements               cannot         reasonably            be      considered            as  


modifications to the release, and because the release does not otherwise contain implicit  

 guarantees of safety or maintenance that could confuse its purpose, we find the final  


requirement of a valid release to be satisfied.  The release thus satisfies all characteristics  


 of a valid release identified by our case law, and we affirm the superior court's grant of  

 summary judgment to the Rock Gym on this issue.  

            B.         The UTPA Does Not Apply To Personal Injury Claims.  


                       Under the UTPA, "[a] person who suffers an ascertainable loss of money or  

property as a result of another person's act or practice declared unlawful by AS 45.50.471  


may bring a civil action to recover for each unlawful act or practice three times the actual  


                               Donahue alleges that, by publishing ads that gave the impression the                          

 damages . . . ."  

 Rock Gym was safe, the Rock Gym engaged in "unfair methods of competition and unfair                                                 


 or deceptive acts or practices in the conduct of trade or commerce" which are unlawful  

                             57   We have not yet decided whether the statutory phrase "loss of money  

under the statute.                                             

 or property" includes personal injury claims.  We now hold that it does not.  


                       The UTPA was "designed to meet the increasing need in Alaska for the  

protection of consumers as well as honest businessmen from the depredations of those  

                                                                                              58  The act protects the consumer  


persons employing unfair or deceptive trade practices." 

             56          AS 45.50.531(a) (emphasis added).  

             57          AS 45.50.471(a).  

             58          W. Star Trucks, Inc. v. Big Iron Equip. Servs., Inc., 101 P.3d 1047, 1052  


                                                                       - 22 -                                                                6932

----------------------- Page 23-----------------------

from deceptive sales and advertising practices,59 and it protects honest businesses from  


their  unethical  competitors.                  Donahue  concedes  that  we  have  limited  the  UTPA  to  

"regulating practices relating to transactions involving consumer goods and services."61  

She  contends,  however,  that  because  we  have  never  restricted  the  types  of damages  

available for conduct within the UTPA's reach, damages for personal injury should be  



                    The superior court observed that there is nothing in the UTPA's legislative  


history to support Donahue's contention that the Alaska Legislature intended the act "to  


expand liability for personal injury or wrongful death or to supplant negligence as the  


basis for such liability."  The superior court identified "significant incongruities between  


 (Alaska 2004) (quoting House Judiciary Committee Report on HCSCS for S.B. 352,  

 House  Journal  Supp.  No.  10  at  1,  1970  House  Journal  744)  (court's  emphasis  and  


 internal quotation marks omitted).  

           59        See, e.g., Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1244-45  


 (Alaska 2007) (affirming superior court's award of treble damages against a car dealer  


 for its insistence on enforcing an invalid contract); Pierce v. Catalina Yachts, Inc. , 2 P.3d  


 618, 624 (Alaska 2000) (holding unconscionable sailboat manufacturer's warranty in  


 favor of buyers).  



                     See, e.g., Garrison v. Dixon, 19 P.3d 1229, 1230-31, 1236 (Alaska 2001)  


 (holding suit to be frivolous where real estate buyer's agents sued competitors, alleging  


 false and misleading advertising); Odom v. Fairbanks Mem'l Hosp., 999 P.2d 123, 127,  


  131-32 (Alaska 2000) (holding viable physician's claims against hospital for retaliatory  


 and anticompetitive behavior).  

           61        See Roberson v. Southwood Manor Assocs., LLC, 249 P.3d 1059, 1062  


 (Alaska 2011) (holding the UTPA does not apply to residential leases) (citing Aloha  


 Lumber Corp. v. Univ. of Alaska , 994 P.2d 991, 1002 (Alaska 1999) (holding the UTPA  


 does not apply to the sale of standing timber because it is real property rather than a  

 consumer good)).  

                                                              - 23 -                                                        6932

----------------------- Page 24-----------------------

the elements of common law personal injury claims and the UTPA, which suggest that  


the two claims cannot be reconciled."  The court explained:  

                    For most of the past twenty years the Alaska Legislature has   

                    enacted and amended, in various forms, multiple iterations of  

                    tort reform aimed at reducing, not expanding, the scope of  

                    civil   liability   for   personal   injury   and   wrongful   death.  

                    Expanding UTPA liability to personal injury and wrongful  

                    death  would  contradict  many  of  the  tort  reform  provisions  

                    enacted by the legislature in AS 09.17.010-080.  For example,  


                    AS 09.17.020 allows punitive damages only if the plaintiff  

                    proves defendant's conduct  was outrageous, including acts  


                    done with malice or bad motives, or with reckless indifference  


                    to the interest of another person.  The UTPA, on the other  

                    hand, does not require such a culpable mental state and almost  


                    as a matter of course allows a person to receive trebled actual  


                    damages.  AS 09.17.060 limits a claimant's recovery by the  


                    amount attributable to the claimant's contributory fault; the  

                    UTPA,  in  contrast,  does  not  provide  a  contributory  fault  


                    defense.         Moreover,   AS   09.17.080   apportions   damages  


                    between  multiple  tortfeasors  whereas  the  UTPA  does  not  

                    permit apportionment of damages.  A UTPA cause of action  

                    for personal injury or wrongful death would sidestep all of  


                    these civil damages protections.  

                    We agree with the superior court that the private cause of action available  


under the UTPA conflicts in too many ways with the traditional claim for personal injury  


or wrongful death for us to assume, without clear legislative direction, that the legislature  


intended the act to provide an alternative vehicle for such suits.  The language of AS  


45.50.531(a) - "ascertainable loss of money or property" - does not provide that clear  


direction.  The legislature is well aware of how to identify causes of action involving  


                                                              - 24 -                                                        6932

----------------------- Page 25-----------------------



personal injury and wrongful death, does so in other contexts,                                              and declined to do so in  

this statute.   


                       Other states have similar laws, and their courts' interpretations are helpful.  

Section  531(a)  has  a  counterpart  in  Oregon's  UTPA,  which  likewise  allows  private  


actions  by  those  who  suffer  a  "loss  of  money  or  property."                                            The  Oregon  Court  of  


Appeals, considering an action for personal injuries occurring after a mechanic allegedly  


misrepresented the state of a car's brakes, held that the UTPA was not a vehicle for the  


pursuit  of  personal  injury  claims.                            It  held  that  the  Act  plainly  had  a  restitutionary  


purpose - "i.e., restitution for economic loss suffered by a consumer as the result of a  


deceptive trade practice."                      It noted the lack of any legislative history "to the effect that  

by  the  adoption  of  that  provision  the  legislature  intended  to  confer  upon  private  


individuals a new cause of action for personal injuries, including punitive damages and  


attorney fees," or of "any decisions to that effect by the courts of any of the many other  


                                                                              It  emphasized the availability of common  

states which have adopted similar statutes." 


law remedies, which provided a range of possible causes of action for personal injury -  

             62         See, e.g., AS 04.21.020(e) (for purposes of statute governing civil liability       

  of  persons  providing  alcoholic  beverages,  "  'civil   damages'  includes  damages  for  

 personal injury, death, or injury to property of a person"); AS 05.45.200(4) (in statutes   

  governing liability of ski resorts, "'injury' means property damage, personal injury, or   

  death"); AS 09.10.070(a) (providing general statute of limitations for "personal injury  

  or death");  AS 09.17.010 (limiting noneconomic damages recoverable "for personal  

  injury or wrongful death"); AS 46.03.825(b)(1) (providing that limitations on oil spill  

  damages do not apply to "an action for personal injury or death").   

             63         ORS 646.638(1); ORS 646.608.  

             64         Gross-Haentjens v. Leckenby, 589 P.2d 1209, 1210-11 (Or. App. 1979).  



                        Id. at 1210; see also Fowler v. Cooley, 245 P.3d 155, 161 (Or. App. 2010).  

             66         Gross-Haentjens, 589 P.2d at 1210-11.  

                                                                       - 25 -                                                               6932

----------------------- Page 26-----------------------

negligence,  breach  of  warranty,  and  strict  products  liability  -  and  noted  that  these  

remedies provide for a more expansive range of damages, such as pain and suffering, not  

available under the UTPA.67  


                   We agree with the reasoning of the Oregon court and conclude that Alaska's  

UTPA does not provide the basis for a claim for personal injury.  

          C.	       The Superior Court Did Not Clearly Err In Finding That The  

                   Rock Gym Waived Any Claim For Rule 68 Attorney's Fees.  

                    The superior court granted the Rock Gym, as the prevailing party, 20 percent  

of its reasonable, actual attorney's fees under Civil Rule 82(b)(2).  Twenty percent of  


"actual attorney's fees which were necessarily incurred" is the presumptively reasonable  

award for a party who prevails in a case resolved short of trial but who does not recover  


a money judgment.                


                    The Rock Gym contends that it should have been awarded fees under Civil  


Rule 68 instead.  Rule 68 provides that (a) where an adverse party makes an offer to allow  

judgment entered against it in complete satisfaction of the claim, and (b) the judgment  


finally entered is at least five percent less favorable to the offeree than the offer, the  

           67	       Id. at 1211.  Other courts have reached similar conclusions.  See Beerman  

  v. Toro Mfg. Corp., 615 P.2d 749, 754 (Haw. App. 1980) ("[T]hough individual actions  


 based on damage to a consumer's property may be within the purview of [the Hawaii  

  consumer protection act], the scope of the statutes does not extend to personal injury  


  actions."); Kirksey v. Overton Pub, Inc. , 804 S.W.2d 68, 73 (Tenn. App. 1990) ("We  

  must hold that the General Assembly intended for the Consumer Protection Act to be  

 used by a person claiming damages for an ascertainable loss of money or property due  


  to an unfair or deceptive act or practice and not in a wrongful death action."); Stevens v.  


 Hyde Athletic Indus., Inc. , 773 P.2d 871, 873 (Wash. App. 1989) ("We hold actions for  


 personal injury do not fall within the coverage of the [Washington consumer protection  





                     See Williams v. Fagnani, 228 P.3d 71, 77 (Alaska 2010) ("Awards made  

 pursuant to the schedule of Civil Rule 82(b) are presumptively correct.").  

                                                            - 26 -	                                                    6932

----------------------- Page 27-----------------------


offeree shall pay a percentage of the reasonable actual attorney's fees incurred by the  


offeror from the date of the offer, the percentage depending on how close the parties are  


to trial when the offer is made.  The Rock Gym made a Rule 68 offer of judgment on  


February 7, 2012, over two months before the April trial date.  Donahue rejected the offer.  


Under these facts, once judgment was granted in the Rock Gym's favor, the conditions  


for an award of 30 percent of "the offeror's reasonable actual attorney's fees" under the  

Rule 68 schedule were satisfied.69  

                       The question presented here, however, is whether the Rock Gym waived any  

request for Rule 68 fees.  The Rock Gym initially argued to the superior court that it  


should be awarded full fees because of express language in the release, which reads:  


                       Should [the Rock Gym] or anyone acting on their behalf, be  


                       required  to  incur  attorney's  fees  and  costs  to  enforce  this  

                       agreement, I agree to indemnify and hold them harmless for  

                       all such fees and costs.   

While arguing this point, the Rock Gym noted in a footnote that it was eligible for full  


fees under AS 09.30.65 (the statute authorizing the Rule 68 procedure).  But it made that  


observation only in support of its argument for full fees under the release.  Its motion did  


not otherwise  mention Rule 68; rather, as an alternative to fees under the indemnity  


clause, the Rock Gym asked the court to use its discretion to award up to 80 percent of  


its fees under Rule 82 - far more than the scheduled award of 20 percent - in light of  

Donahue's "vexatious" behavior, particularly having complicated the case with claims  

under the UTPA.  

             69         Alaska R. Civ. P. 68(b)(3).                      We note that the award of fees under Rule 68         

 was likely to be only nominally greater than that under Rule 82.  Rule 68 affects only       

  fees incurred after the date the offer is made, here February 7, 2012.  The parties had  

  already completed their summary judgment briefing by that time, and summary judgment  

 was entered a month later.  

                                                                        - 27 -                                                                6932

----------------------- Page 28-----------------------


                     The superior court denied the Rock Gym's request for full fees based on the  


release and ordered it to submit an affidavit detailing its counsel's billings.  The order also  


stated, "Plaintiff  should address the effect, if any, of defendant's Rule 68 offer on the  


amount of fees that may be awarded."  The Rock Gym submitted the required fee affidavit  

and also moved for reconsideration, again arguing that full fees should be awarded under  


the release's indemnity clause; again relying on Rule 82 as an alternative; and failing to  

mention Rule 68 at all.  Donahue submitted no response.  

                     The superior court again rejected the Rock Gym's argument based on the  


release's indemnity clause and  ordered  the Rock Gym to submit a more detailed fee  

affidavit.    The  Rock  Gym  filed  another  affidavit  which  did  not  address  the  offer  of  



                     In its third order, the superior court again rejected the Rock Gym's request  


for full attorney's fees and awarded 20 percent of its fees under Rule 82(b)(2).  The Rock  


Gym  again  moved  for  reconsideration.   This time  the  Rock  Gym  argued  that  it  was  

entitled to 30 percent of its fees under Rule 68, relying on the footnote in its first motion  


to contend that the argument was not waived.                              

                     The superior court then issued its fourth order on fees.  It reaffirmed its Rule  


82 award, finding that the Rock Gym had not adequately or timely made a claim under  

Rule 68.  The court observed that the Rock Gym's failure to make the claim earlier was  


likely a "tactical decision, initially, to pursue full attorney fees based on indemnity rather  



                      As noted above, the increased percentage of attorney's fees would only  


  apply to those fees incurred after the date the offer of judgment was made; the amount  

  at issue thus appears to be minimal.  

                                                               - 28 -                                                            6932  

----------------------- Page 29-----------------------

than present all of its alternative fee award theories at once."  


                     The superior court's finding that the Rock Gym waived a request for fees  



under Rule 68 is reviewed for clear error.                         We see no clear error here.  The Rock Gym's  


reference to its offer of judgment in its motion for attorney's fees was made only to  


support its request for full fees under the indemnity provision of the release; the only  


alternative it expressly requested was an award of enhanced fees under Rule 82.  As the  

superior court observed, it was not the court's duty in this context "to solicit additional  



arguments for a moving party."                        Nor was the superior court obliged to consider the  



Rule 68 argument when it was raised for the first time in motions for reconsideration. 


And under the circumstances of this case, including the modest difference between fee  



awards under Rule 82 and Rule 68 and an apparent deficiency in the Rule 68 offer itself, 

we cannot see plain error.75  

            71        See Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).  

            72        See, e.g., Forshee v. Forshee, 145 P.3d 492, 498 (Alaska 2006).  

            73        See Haines v. Cox, 182 P.3d 1140, 1144 (Alaska 2008) (holding that the  

 plaintiff's submission of evidence only when she moved for reconsideration forecloses  


 her claim that the court abused its discretion by failing to rely on that evidence); Koller  


 v. Reft, 71 P.3d 800, 805 n.10 (Alaska 2003) (noting that superior court is not obliged  


 to consider documents presented for the first time with a motion for reconsideration).  




                      The  offer  did  not  encompass  the  Rock  Gym's  counterclaim  against  


 Donahue for contractual indemnity.  See Progressive Corp. v. Peter ex rel. Peter , 195  

 P.3d 1083, 1089 (Alaska 2008) ("Both Rule 68 and AS 09.03.065 . . . implicitly require  


 that  an  offer  of  judgment  include  all  claims  between  the  parties  and  be  capable  of  

 completely resolving the case by way of a final judgment if accepted.").  

            75        The plain error doctrine requires a party to prove that the error waived  


 below was "so prejudicial that failure to correct it will perpetuate a manifest injustice."  

 Forshee , 145 P.3d at 500 n.36 (quoting Hosier v. State , 1 P.3d 107, 112 n.11 (Alaska  


                                                                - 29 -                                                        6932

----------------------- Page 30-----------------------


               The judgment of the superior court is AFFIRMED.  


 App. 2000)) (internal quotation marks omitted).  

                                             - 30 -                                        6932  

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