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McGlothlin v. Municipality of Anchorage (11/19/99) sp-5205

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


SCOTT C. McGLOTHLIN,          )
                              )    Supreme Court No. S-8660
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-96-9379 CI
                              )
MUNICIPALITY OF ANCHORAGE     )
and OGDEN FACILITY MANAGEMENT )
OF ALASKA, INC.,              )    O P I N I O N
                              )
             Appellees.       )    [No. 5205 - November 19, 1999]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                     Rene J. Gonzalez, Judge.


          Appearances: Charles W. Coe, Anchorage, for
Appellant.  Susan M. West, Guess & Rudd, P.C., Anchorage, for
Appellees.


          Before:   Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.


I.   INTRODUCTION
          Scott McGlothlin injured his back in November 1994 while
loading a heavy scoreboard at the Sullivan Sports Arena in
Anchorage.  The scoreboard belonged to his employer, Carr-Gottstein
Foods Co. (Carrs).  McGlothlin sued the Municipality of Anchorage
(the owner of the arena) and Ogden Facility Management (the
operator) under several tort theories.  The defendants moved for
summary judgment, arguing that they owed McGlothlin no duty.  The
superior court granted the motion, and awarded the defendants
twenty percent of their attorney's fees pursuant to Civil Rule 82. 
McGlothlin appeals both the summary judgment and the attorney's
fees award.  Because McGlothlin failed to present any evidence
showing that he was owed a duty, and because the trial court did
not abuse its discretion in awarding attorney's fees, we affirm.
II.  FACTS AND PROCEEDINGS
          A.   Factual Background [Fn. 1]
          In the early afternoon of November 30, 1994, Scott
McGlothlin and his co-worker Mark Lulay were instructed by their
supervisors to pick up a scoreboard at the Sullivan Arena.  The
scoreboard belonged to McGlothlin's employer, Carrs, and McGlothlin
and Lulay were told to deliver it to West Anchorage High School for
the Great Alaska Shootout, an event sponsored by Carrs. [Fn. 2] 
Together they took a two-wheel dolly and drove to the arena in the
company van.
          At the arena, McGlothlin and Lulay located a service ramp
leading up to a closed garage door.  McGlothlin pressed a buzzer at
the service door, and an unidentified Ogden employee answered. 
McGlothlin indicated he was there to pick up a scoreboard for
Carrs, but the man had no knowledge of it.  However, he located a
second unidentified Ogden employee from within the arena who did. 
          The two Ogden employees then left, and a few minutes
later the second employee, joined by a third unidentified employee,
returned rolling out the scoreboard.  They brought the scoreboard
out to the service ramp just inside the garage door on a wheeled
rack which appeared specifically designed for the scoreboard.  The
scoreboard itself was approximately six to seven feet long, four
feet high, and a few feet wide.  The Ogden employees did not warn
McGlothlin or Lulay of the scoreboard's weight, nor did they offer
assistance.  On their part, neither McGlothlin nor Lulay made any
inquiries or asked for help.  The Ogden employees then left.  
          McGlothlin backed the van up so that the rear of the van
was within a few feet of the scoreboard just inside the garage
door.  The area was clean, free from debris, and the floor was dry
and flat.  McGlothlin then went to the rear of the van, "got down
in position" and felt how heavy the scoreboard was, ultimately
estimating it to weigh approximately 400 pounds.  The rack was too
long to fit into the van without being turned on its side, so
McGlothlin and Lulay removed the scoreboard from the rack onto the
floor.  Because of its weight, McGlothlin briefly looked around for
a fork lift or anyone who might assist them in loading the
scoreboard into the van; finding no one nor any equipment, he
returned to the van to begin loading. 
          McGlothlin lifted the end closest to the rear of the
vehicle with his back to the van, while Lulay faced the van lifting
the farther edge of the scoreboard.  As they began to lift the
scoreboard, McGlothlin gave a "help me" look to the third Ogden
employee, who had returned. [Fn. 3]  However, neither McGlothlin
nor Lulay verbally requested assistance or asked for any equipment. 
The third Ogden employee left without saying anything. 
          McGlothlin and Lulay proceeded to lift the scoreboard,
trying to place it diagonally into the back of the van.  The floor
of the van was approximately three-and-one-half feet above the
ground.  McGlothlin, moving backwards with his back to the van,
kept one foot on the ground and, bending over, put his other leg
into the van so that he got his end of the scoreboard onto the van
floor.  He then felt a sharp, piercing pain in his center, lower
back.  McGlothlin pulled the scoreboard a bit more into the van and
then fell to his knees on the ground.  After a few minutes, he got
up to assist Lulay, who was trying to finish pushing the scoreboard
into the van by himself.  At this point, the third Ogden employee
returned and McGlothlin verbally requested his help.  Lulay and the
Ogden employee then finished loading the scoreboard into the van. 
          After the scoreboard was secured in the van, McGlothlin
and Lulay delivered it to West High, where Lulay and another man
unloaded it.  McGlothlin and Lulay then returned to Carrs and
McGlothlin reported his injury to his boss.  He was sent home
early, and he remained off work for several days.  After visiting
his family physician with complaints of lower back pain, McGlothlin
filed the appropriate workers' compensation form documenting the
injury.  McGlothlin continues to complain of chronic lower back
pain. 
          B.   Procedural Background
          McGlothlin sued the Municipality of Anchorage and Ogden
Facility Management (collectively, MOA/Ogden) in November 1996 for
damages resulting from his injuries.  The Municipality of Anchorage
owns the George M. Sullivan Sports Arena, and has contracted with
Ogden Facility Management of Alaska, Inc. to operate the facility. 
After deposing McGlothlin and conducting other discovery, MOA/Ogden
moved for summary judgment.  The court heard oral argument in March
1998 and issued an order that same day granting MOA/Ogden's motion. 
Subsequently, MOA/Ogden filed a motion for costs and fees pursuant
to Rules 79 and 82.  The court entered judgment against McGlothlin
and awarded attorney's fees of $4,242.50 to MOA/Ogden.  This appeal
followed.
III. STANDARD OF REVIEW
          We review a summary judgment de novo. [Fn. 4]  Drawing
all reasonable inferences in favor of the non-movant, this court
determines whether the parties genuinely dispute any facts material
to a viable legal theory and, if not, whether the undisputed facts
entitle the movant to judgment as a matter of law. [Fn. 5]  The
moving party bears the initial burden of proving through admissible
evidence (1) the absence of genuine factual disputes, and (2) its
entitlement to judgment as a matter of law. [Fn. 6]  Once the
moving party has established a prima facie case, "the non-movant is
'required, in order to prevent entry of summary judgment, to set
forth specific facts showing that he could produce admissible
evidence reasonably tending to dispute or contradict the movant's
evidence, and thus demonstrate that a material issue of fact
exists.'" [Fn. 7]  Where a defendant moves for summary judgment,
the plaintiff must produce facts of his own in controversion to the
relevant facts and circumstances set forth in the defendant's
affidavit. [Fn. 8]  Assertions of fact in unverified pleadings and
memoranda are insufficient to defeat a motion for summary judgment.
[Fn. 9]   
          We review a trial court's award of attorney's fees for
abuse of discretion. [Fn. 10]  We will reverse a manifestly
unreasonable award. [Fn. 11]  However, awards made pursuant to the
schedule in Alaska Civil Rule 82(b) are presumptively correct. [Fn.
12]  
IV.  DISCUSSION
     A.   The Superior Court Did Not Err in Granting Summary
Judgment in Favor of MOA/Ogden.

          The superior court held that MOA/Ogden did not owe
McGlothlin any duty of care to assist him, to warn him, or to
control the loading operation.  The superior court further found
that McGlothlin's injury resulted from his own act of loading his
employer's scoreboard at his employer's direction.   
          McGlothlin argues that genuine issues of material fact
exist as to whether MOA/Ogden owed him a duty under four separate,
albeit overlapping, theories of liability: (1) retained control,
(2) voluntary assumption of a duty, (3) simple negligence, and (4)
negligent entrustment.  We disagree.  As discussed below,
McGlothlin failed to introduce any evidence raising material
factual disputes under any viable legal theory.  Therefore, we
affirm the superior court.
          1.   MOA/Ogden owed McGlothlin no duty.
          This court's decision in Brock v. Weaver Bros., Inc. [Fn.
13] controls the disposition of this case.  In Brock, the
plaintiff, an employee of Alaska International Air (AIA), was
injured during a pipe-loading operation. [Fn. 14]  Brock alleged
that when the injury occurred he was using "equipment 'owned or
controlled by one or more of the defendants' and that the
negligence of Weaver Brothers or another defendant caused his
injury." [Fn. 15]  Weaver Brothers moved for summary judgment,
contending that it did not exercise control nor have the right to
exercise control over Brock's operations when the accident
occurred. [Fn. 16]  In support of its motion, Weaver Brothers
submitted uncontroverted affidavits that at the time of the injury
Brock was an employee of AIA; that AIA owned all of the equipment
used in the loading operation; that all of the employees involved
were AIA employees; that no contract between AIA and Weaver
Brothers gave the latter any right to control the loading
operations of AIA; and that Weaver Brothers neither had the right
to control the loading operation, nor had actually exercised
control. [Fn. 17]  In his opposition, Brock failed to set forth
specific facts demonstrating a material issue of fact which, if
resolved in Brock's favor, would result in liability to the Weaver
Brothers. [Fn. 18]  We affirmed the superior court's grant of
summary judgment. [Fn. 19]
          In the present case, MOA/Ogden submitted three affidavits
in support of its motion for summary judgment.  Richard Watts, a
Carrs supervisor involved with promoting the "Carrs Great Alaska
Shootout," stated that the scoreboard was the property of Carrs,
and that to the best of his knowledge Carrs delivered the
scoreboard to the arena for each Shootout tournament and retrieved
it afterwards.  Kim Digel, McGlothlin's immediate supervisor,
stated that she had instructed McGlothlin to go to the arena with
Lulay to pick up the scoreboard, and that she did not expect anyone
at the arena to assist or supervise her employees with this task. 
Finally, Dennis Morris, the operations manager of the arena, stated
that (1) MOA/Ogden did not own or lease any portable scoreboards in
1994; (2) he was aware that Carrs occasionally used its own
portable scoreboard at the Shootout games; (3) MOA/Ogden had no
contract with Carrs for the maintenance, use, operation,
transportation, or storage of the scoreboard; and (4) MOA/Ogden
neither actually controlled nor had the right to control the
loading operation. 
          McGlothlin offered no evidence disputing these factual
assertions.  Rather, when deposed, McGlothlin stated that after the
scoreboard was rolled out to the service ramp, he and his co-worker
were left alone to load it, without direction or assistance from
any MOA/Ogden employees.  Thus, he confirmed that MOA/Ogden
retained no actual control over the loading operation.  He further
admits that MOA/Ogden provided no loading equipment, and that he
did not ask for any assistance until after he was injured, with the
exception of a "help me" glance he gave one Ogden employee after he
began loading the scoreboard.  Finally, McGlothlin admits that the
loading area was clean, dry, and free from debris.
          Like Brock, the record here is devoid of any evidence
that the defendants owed a duty of care to the plaintiff.  The
uncontroverted affidavits MOA/Ogden submitted and McGlothlin's own
testimony establish that the scoreboard was the property of
McGlothlin's employer, Carrs; that only employees of Carrs were
involved in loading the scoreboard until McGlothlin was injured and
requested assistance from an Ogden employee; that MOA/Ogden
employees exercised no actual control nor had a contractual right
to control the loading operation; and that McGlothlin's injury
resulted from his own actions in loading the scoreboard.  On this
record, the only reasonable conclusion is that MOA/Ogden did not
owe McGlothlin a duty of care.
          2.   McGlothlin's tort theories
     
          As previously indicated, McGlothlin argues that factual
disputes exist as to whether MOA/Ogden owed him a duty under four
theories of liability: (1) retained control, (2) voluntary
assumption of a duty, (3) simple negligence, and (4) negligent
entrustment.  His arguments lack merit.  
          McGlothlin's "retained control" argument fails because
there was no independent contractor-employer relationship between
Carrs and MOA/Ogden.  In order for a duty to arise under the
doctrine of "retained control," there must be an independent
contractor-employer relationship between the parties. [Fn. 20] 
Here, MOA/Ogden offered uncontroverted testimony establishing that
no independent contractor-employer relationship existed between
itself and Carrs, either express or implicit.  Therefore, the
"retained control" theory is not available to McGlothlin. [Fn. 21] 
          McGlothlin next contends that MOA/Ogden's failure to
assist in or supervise the loading operation, and its failure to
warn him of the scoreboard's weight, raise factual disputes which
preclude summary judgment.  This argument, too, is without basis in
the record.  There is no evidence that MOA/Odgen voluntarily
assumed any duty to McGlothlin.  Rather, the evidence indicates
they delivered the scoreboard to him and left him and Lulay alone
to load it themselves.  Nevertheless, McGlothlin argues that the
assistance given him by the third Ogden employee after he was
injured indicates that MOA/Ogden had a duty to assist him
initially.  This argument is circular and lacks merit.  While it is
true that "one who assumes to act, even though gratuitously, may
thereby become subject to the duty of acting carefully[,]" [Fn. 22]
it is not true that rendering assistance after an injury occurs
implies a duty to do so.  MOA/Ogden had no duty to assist
McGlothlin.  As to warning McGlothlin of the scoreboard's weight,
McGlothlin admits he removed the scoreboard from the rack prior to
loading it into the truck and was aware of its weight.  MOA/Ogden
had no duty to warn McGlothlin of an open and obvious condition of
which McGlothlin was aware. [Fn. 23] 
     
          Finally, McGlothlin's argument that a factual dispute
exists as to whether MOA/Ogden negligently entrusted [Fn. 24] the
scoreboard to him fails because the doctrine of negligent
entrustment requires that the defendant have a greater right of
possession or control of the chattel than the person to whom he or
she entrusts it. [Fn. 25]  MOA/Ogden was returning the scoreboard
to its rightful owner, Carrs.  MOA/Ogden could not lawfully refuse
to hand over the scoreboard.  Therefore, the doctrine of negligent
entrustment is not available to McGlothlin. [Fn. 26] 
          In sum, the superior court correctly found that there
were no genuine issues of material fact under any of the theories
of liability propounded by McGlothlin, and that MOA/Ogden was
entitled to judgment as a matter of law.  
     B.   The Superior Court Did Not Abuse Its Discretion in
Awarding Attorney's Fees.
     
          Applying Civil Rule 82(b), the superior court awarded
MOA/Ogden $4,242.50, or twenty percent of the $21,212.50 in fees
that MOA/Ogden showed that it had incurred. [Fn. 27]  McGlothlin
contends that the superior abused its discretion in failing to vary
the award under Rule 82(b)(3) because the fees MOA/Ogden incurred
were excessive and would deter similarly situated plaintiffs from
the voluntary use of the courts. [Fn. 28]  Our review of the record
indicates that the fees were reasonable, and not so onerous as to
deter those who come forward in good faith with a complaint.  We
therefore affirm the trial court's attorney's fees award. 
V.   CONCLUSION
          MOA/Ogden made a prima facie case that there were no
genuine issues of material fact and that it was entitled to
judgment as a matter of law.  McGlothlin failed to submit evidence
which tended to dispute or contradict this evidence, or to
demonstrate that MOA/Ogden was not entitled to judgment as a matter
of law.  Additionally, the superior court's award of attorney's
fees was not an abuse of discretion.  We therefore AFFIRM.


FOOTNOTES


Footnote 1:

     Because this case was decided on summary judgment, the
description of the facts draws all reasonable inferences in favor
of the non-movant, McGlothlin.  See Arctic Tug & Barge, Inc. v.
Raleigh, Schwarz & Powell, 956 P.2d 1199, 1200 (Alaska 1998)
(citations omitted).  Prominent among such inferences is that the
workers McGlothlin encountered at the Sullivan Arena were Ogden
employees, a fact not definitively established in discovery. 


Footnote 2:

     McGlothlin had been employed by Carrs for several years,
primarily in the mail room, and his duties included picking up,
sorting, and delivering interoffice mail.  On occasion, he would be
assigned various other tasks such as setting up for functions and
moving offices. 


Footnote 3:

     The deposition testimony of McGlothlin is somewhat
contradictory on this particular order of events.  It is unclear
whether McGlothlin looked around for a forklift before or after he
made his "help me" look to the third Ogden employee, or whether he
had even started lifting when he gave this look.


Footnote 4:

     See Arctic Tug & Barge, 956 P.2d at 1200 (citations omitted).


Footnote 5:

     See id.


Footnote 6:

     See Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434, 437
(Alaska 1995) (citations omitted).


Footnote 7:

     Jennings v. State, 566 P.2d 1304, 1309 (Alaska 1977) (quoting
Howarth v. First Nat'l Bank of Anchorage, 540 P.2d 486, 489-90
(Alaska 1975)) (internal brackets omitted).


Footnote 8:

     Alaska R. Civ. P. 56(e).


Footnote 9:

     See id.; see also State, Dep't of Highways v. Green, 586 P.2d
595, 606 n.32 (Alaska 1978) (citations omitted).


Footnote 10:

     See Byars v. Byars, 945 P.2d 792, 795 (Alaska 1997).


Footnote 11:

     See Feichtinger v. Conant, 893 P.2d 1266, 1268 (Alaska 1995)
(citations omitted).


Footnote 12:

     See Byars, 945 P.2d at 795.


Footnote 13:

     640 P.2d 833 (Alaska 1982).


Footnote 14:

     See id. at 834.


Footnote 15:

     Id.


Footnote 16:

     See id.


Footnote 17:

     See id. at 834-35.


Footnote 18:

     See id. at 836.


Footnote 19:

     See id. at 837.


Footnote 20:

     We expressly adopted the Restatement (Second) of Torts sec.
414
(1965) when we approved of the "retained control" theory of
negligence. See Mosolo v. State, 644 P.2d 205, 210-11 n.3 (Alaska
1982) (listing cases).  This section provides:

          Negligence in Exercising Control Retained By
Employer.  One who entrusts work to an independent contractor, but
who retains the control of any part of the work, is subject to
liability for physical harm to others for whose safety the employer
owes a duty to exercise reasonable care, which is caused by  his
failure to exercise his control with reasonable care.


Footnote 21:

     The superior court held that Carrs was an independent
contractor of MOA/Ogden for the purpose of providing a scoreboard
for use at the Sullivan Arena, and thus the "retained control"
theory applied.  However, the court also found that the evidence
showed that MOA/Ogden retained no control over the loading of the
scoreboard, and thus MOA/Ogden did not owe McGlothlin a duty under
this theory.  We agree with this result, but for the reason
expressed here.  We may affirm a judgment of the superior court on
different grounds than those advanced by the superior court.  See
Lazy Mtn. Land Club v. Matanuska-Susitna Bor. Bd. of Adjustment and
Appeals, 904 P.2d 373, 381 n.45 (Alaska 1995) (quotation marks and
citation omitted).


Footnote 22:

     See Moloso, 644 P.2d at 212 (citations omitted).


Footnote 23:

     Cf. West v. City of St. Paul, 936 P.2d 136, 138-39 (Alaska
1997) (holding wharfinger has no duty to warn of open and obvious
conditions that can be reasonably ascertained by vessel crew);
Prince v. Parachutes, Inc., 685 P.2d 83, 88 (Alaska 1984) (citation
omitted) (holding manufacturer has no duty to warn of hazards or
dangers that would be readily recognized by an ordinary user of the
product).


Footnote 24:

     Under this theory, "[o]ne who supplies . . . a chattel for the
use of another whom the supplier knows or has reason to know to be
likely because of his youth, inexperience, or otherwise, to use it
in a manner involving unreasonable risk to himself and others . .
. is subject to liability for physical harm resulting to them." 
Neary v. McDonald, 956 P.2d 1205, 1208 (Alaska 1998) (citing
Restatement (Second) of Torts sec. 390 (1965)).


Footnote 25:

     See id. at 1209 (citations omitted).


Footnote 26:

     In addition, McGlothlin failed to introduce any evidence to
show that the Ogden employees should have known he was incapable of
loading the scoreboard. 


Footnote 27:

     Rule 82(b)(2) provides, in part, that "[i]n cases in which the
prevailing party recovers no money judgment, the court shall award
the prevailing party . . . in a case resolved without trial 20
percent of its actual attorney's fees which were necessarily
incurred."


Footnote 28:

     Rule 82(b)(3) allows the trial court to vary an attorney's
fees award based upon a number of factors, including the complexity
of the litigation, the reasonableness of the attorneys' hourly
rates, the number of attorneys, and the hours expended, as well as
the potential that a fee award may be so onerous as to deter
similarly situated litigants from the voluntary use of the courts.