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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Coster v. Piekarski (6/9/00) sp-5282

Coster v. Piekarski (6/9/00) sp-5282

     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
                                 


CAROLYN COSTER,               )
                              )    Supreme Court No. S-8928
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-1952 CI
                              )
ANDREW J. PIEKARSKI,          )    O P I N I O N
                              )
             Appellee.        )    [No. 5282 - June 9, 2000]
______________________________)



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


          Appearances:  C.R. Kennelly, Stepovich,
Kennelly & Stepovich, P.C., Anchorage, for Appellant.  Gregory A.
Miller, Birch Horton Bittner & Cherot, Anchorage, for Appellee.


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


          EASTAUGH, Justice.


I.   INTRODUCTION
          A bailor alleged the loss of valuable jewelry she
concealed with the bailee's permission in the bailee's home.  Was
it error to grant summary judgment to the bailee whose affidavit
stated that his home had been burglarized and that he had taken
steps to secure the home?  We conclude that it was, because there
are genuine, material fact disputes about whether the burglary
caused the loss.  We therefore reverse and remand.
II.  FACTS AND PROCEEDINGS
          Carolyn Coster sued Andrew Piekarski alleging negligent
bailment.  Coster testified in a deposition that Piekarski helped
her hide jewelry worth $87,635 in his Eagle River home when she
took a job in Valdez.  She also testified that Piekarski allegedly
told her, "I've lived here 25 years.  My house has never been
robbed.  Your stuff will be totally safe with me."  Coster
testified that Piekarski telephoned her in Valdez several months
later to tell her that her jewelry had been stolen in a burglary
while he was in Minnesota.
          Piekarski moved for summary judgment.  He conceded for
motion purposes that a bailment existed, but argued that he had
taken appropriate precautions to prevent the jewelry's loss. [Fn.
1]  He supported his motion with his affidavit denying the
existence of a bailment -- indeed, denying any knowledge of the
jewelry's presence in his house -- but claiming that his house had
been burglarized during the time of the alleged bailment.  He also
explained the precautions he had taken to protect his home while he
was Outside. 
          The superior court granted Piekarski's motion, concluding
that there was "no evidence that Andrew Piekarski failed to
exercise reasonable care in safeguarding [Coster's] property, or
that he was involved in the theft in any way."  Coster appeals.
III. DISCUSSION
     A.   Standard of Review
          We review a grant of summary judgment de novo, affirming
the superior court's decision if there are no genuine issues of
material fact and the moving party is entitled to judgment as a
matter of law. [Fn. 2]  In reviewing a motion for summary judgment,
we take a "view of the facts that most favors the nonmoving party."
[Fn. 3]  Where the disputed facts relate to the scope of a duty in
a negligence action, as here, we hesitate to remove the resolution
of such questions from the jury's consideration. [Fn. 4]
     B.   Was There a Genuine Dispute About Whether the Loss Was
Beyond Piekarski's Control?

          In a bailment case, the bailor (here Coster) bears an
initial burden of establishing (1) the existence of a bailment, and
(2) the damage, destruction, or loss of the chattel involved. [Fn.
5]  Those issues are undisputed here for the purposes of summary
judgment.  The burden therefore shifts to the bailee (here
Piekarski) to prove:
          1.   that the cause of the damage or
destruction was beyond his control, and

          2.   that there is evidence in explanation of
the damage which would indicate care on his part in the
protection of the property.[ [Fn. 6]]

Only after Piekarski has proved these facts does the burden of
proving specific negligence shift back to Coster. [Fn. 7]  As this
case is presented to us, Piekarski is entitled to summary judgment
only if there is no genuine dispute that the loss was "beyond his
control" and if he offers evidence permitting an inference that he
exercised appropriate care.  
          The record establishes that there is a fact dispute about 
whether the jewelry's disappearance "was beyond [Piekarski's]
control."  On the one hand, Piekarski signed two letters in the
summer of 1995 claiming that Coster had lost jewelry in the
burglary.  On the other hand, Piekarski supported his motion for
summary judgment with his 1998 affidavit in which he denied any
knowledge that Coster had brought jewelry to his house.  Moreover,
the police interviewed Piekarski when they investigated the
burglary, but the police report does not list the jewelry as
missing.  Adding to the contradictions is Coster's testimony that
Piekarski waited several days after the burglary before telephoning
her in Valdez and "inform[ing her] of the robbery . . . and [her]
missing property and jewelry."  The record does not explain how
Piekarski could inform Coster of a theft of property he did not
know was in the home, or why he did not report loss of the jewelry
to the police when he reported the burglary.  The circumstances
surrounding the burglary and the seemingly contemporaneous jewelry
disappearance remain murky.
          We acknowledge that Piekarski only concedes the fact of
a bailment for the purpose of summary judgment and that he asserts
that he would contest the fact of bailment at trial.  The burden of
proof per State v. Stanley [Fn. 8] does not prevent Piekarski from
litigating the question of bailment at trial.  But it is
nonetheless insufficient proof of a cause "beyond his control" for
him to state simply that a burglary occurred during the term of the
bailment.  Something more is required, particularly some evidence
that tends to prove that the burglary caused the loss of Coster's
jewelry.  Piekarski has not stated, for example, that the burglars
exposed his "secret-hiding spot" under his bedroom dresser, where
Coster claims to have hidden her jewelry at his suggestion, or even
whether the burglars entered or took anything from his bedroom.
[Fn. 9]  He has not stated that he noticed the jewelry missing when
he inventoried stolen items for the police.  He did not report to
the police that the jewelry had been stolen.  In short, he has
provided no evidence tying any loss of the jewelry to the burglary.
          Piekarski's inconsistent statements about whether the
jewelry was even in his house could reasonably cause a jury to
question whether the loss was "beyond his control." [Fn. 10]
          These inconsistencies put Piekarski's credibility in
genuine dispute.  Questions about witness credibility will not
necessarily preclude summary judgment, unless supported by specific
facts. [Fn. 11]  But the inconsistencies noted above themselves
constitute specific facts that require sending the "beyond control"
issue to a fact finder.  Only a fact finder can resolve the
fundamental disputes about whether the jewelry was ever in the
home, and whether it was lost in a burglary.  We also note that
Piekarski cannot simultaneously concede the existence of a bailment
for summary judgment purposes while also relying on his testimony
that the jewelry was not in his home.
     C.   Did Piekarski Exercise the Necessary Care?

          A bailee has the duty to "exercise the degree of care of
a reasonably careful owner." [Fn. 12]  The care that is reasonable
will necessarily depend on the particular circumstances of each
bailment. [Fn. 13]  The risks Piekarski's home presented are
relevant to the precautions Piekarski had to take to protect
Coster's jewelry.
          The record contains contradictory evidence about the
safety of Coster's jewelry in Piekarski's home.  There was evidence
that Piekarski, before leaving the state, took precautions to
safeguard his home.  He locked his house and chained King, his
Rottweiler, outside.  He asked his neighbor to care for the dog and
watch over the house.  In his affidavit, Piekarski discussed his
neighborhood's safety: "I have lived in the neighborhood for
approximately 25 years, and I have never known there to be a
burglary, robbery or other similar crime prior to this October 1994
burglary." [Fn. 14]  Coster testified in deposition that Piekarski
had told her much the same thing when she agreed to bail her
property to him.  But she argues on appeal that Piekarski's
description was not accurate.  She relies on State Farm Insurance
documents in the record that indicate that someone attempted to
break into a vehicle parked in Piekarski's driveway only a few
weeks before Coster moved her jewelry into his home. [Fn. 15] 
          Relying on the evidence of the alleged vehicular break-
in, Coster argues that there were genuine fact disputes about the
reasonableness of Piekarski's conduct, barring summary judgment. 
In essence, she reasons that if Piekarski knew of a vehicular
break-in at his home only weeks before accepting the jewelry
bailment, a jury might conclude that a "reasonably careful owner"
in those circumstances would have taken greater precautions to
protect valuable jewelry when leaving the state, perhaps by
returning it to the owner, giving it to another person for
safekeeping, or storing it in a safe deposit box.  Whether any
additional precautions were necessary beyond those Piekarski took
depends largely upon how safe his home was for the storage of
valuables.
          Piekarski argues that Coster is barred from making this
argument because she asserts it for the first time on appeal.
Coster did not argue in the superior court that the prior break-in
had a direct bearing on the reasonableness of Piekarski's
precautions. She there argued only that Piekarski had taken
inadequate measures because she believed he had taken King from the
home premises and moved him to a distant fishing lodge.  The
superior court, considering her narrow argument, concluded that her
unsupported speculation that King had been removed was insufficient
to overcome direct evidence that King had been staked at the home
at all relevant times.  It therefore did not err in holding, based
on her argument, that Coster's "negligence claim fails."
          Having concluded in Part III.B that it was error to hold
on summary judgment that the loss was beyond Piekarski's control,
it is necessary to remand for further proceedings.  We consequently
also conclude that Coster should not be foreclosed from asserting
her new appellate negligence theory on remand.  Absent a showing of
undue prejudice resulting from her failure to raise this argument
in the superior court, there is no obvious reason why her prior
failure to preserve the issue for the appellate court should
finally bar her from raising this issue on remand to the trial
court.  Piekarski has not claimed any prejudice in having to
respond to this argument on appeal. [Fn. 16]  The argument she now
raises for the first time is not inherently inconsistent with her
former argument; indeed, it is grounded in the basic elements of
any bailment case, and relies solely on facts within the record.
[Fn. 17]  The claim might have convinced the superior court to deny
summary judgment to Piekarski on the due care issue.  At least the
claim is sufficiently plausible that we decline to hold that the
law-of-the-case doctrine somehow prevents Coster from asserting it
on remand or makes the summary judgment on the due care issue
final.  The superior court will have the first opportunity to give
substantive consideration to this claim; this means that the
appellate court is not granting relief on a ground the trial court
never had an opportunity to consider.
IV.  CONCLUSION
          There are genuine issues of material fact about whether
any loss of the jewelry was beyond Piekarski's control. We
therefore REVERSE Piekarski's summary judgment and REMAND for 
further proceedings.
          The parties' appellate arguments focus almost exclusively
on bailment, but we observe that the same credibility issues
bearing on the bailment control issue discussed in Part III.B would
appear to preclude a defense summary judgment on the conversion
claim given the record as it presently exists. 


                            FOOTNOTES


Footnote 1:

     Given Piekarski's concession for motion purposes, we assume on
appeal that there was a bailment. 


Footnote 2:

     See Lane v. City of Kotzebue, 982 P.2d 1270, 1272 (Alaska
1999).


Footnote 3:

     Saddler v. Alaska Marine Lines, Inc., 856 P.2d 784, 787
(Alaska 1993).


Footnote 4:

     See Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956
P.2d 1199, 1204 (Alaska 1998); Maddox v. River & Sea Marine, Inc.,
925 P.2d 1033, 1035 (Alaska 1996); Smith v. State, 921 P.2d 632,
634-35 (Alaska 1996).


Footnote 5:

     See State v. Stanley, 506 P.2d 1284, 1289 (Alaska 1973).  See
also Silvers v. Silvers, __ P.2d __, Op. No. 5258 at 14-16 (Alaska,
April 14, 2000).  


Footnote 6:

     Stanley, 506 P.2d at 1289.  


Footnote 7:

     See id.


Footnote 8:

     506 P.2d 1284 (Alaska 1973).


Footnote 9:

     The police report does not describe the pre-burglary locations
of any of the items reported as lost.


Footnote 10:

     Stanley, 506 P.2d at 1289.


Footnote 11:

     See Arctic Tug & Barge, 956 P.2d at 1201.


Footnote 12:

     Dresser Indus., Inc. v. Foss Launch & Tug Co., 560 P.2d 393,
395 (Alaska 1977); see also Alaska Continental, Inc. v. Trickey,
933 P.2d 528, 536 (Alaska 1997) (citing Dresser); Gillen v.
Holland, 797 P.2d 646, 649 (Alaska 1990) (same).


Footnote 13:

     See Adams v. State, 555 P.2d 235, 240-41 (Alaska 1976)
(stating that "reasonable care will, of course, vary with the
circumstances and hazards involved"); see also Restatement (Second)
Torts sec. 283 (1965) ("Unless the actor is a child, the standard
of
conduct to which he must conform to avoid being negligent is that
of a reasonable man under like circumstances." (Emphasis added.)).


Footnote 14:

     (Emphasis added.)  


Footnote 15:

     The State Farm evidence was not undisputed.  Piekarski's
superior at work testified that the vehicle break-in actually
happened in downtown Anchorage.

          Piekarski also argues that the State Farm records were
inadmissible.  They were presented as part of the business records
of Piekarski's labor union.  They also potentially memorialize
information supplied by Piekarski.  Their admissibility can be
explored on remand.


Footnote 16:

     See Pacific Marine Ins. Co. of Alaska in Liquidation v.
Harvest States Coop., 877 P.2d 264, 266-67 n.1 (Alaska 1994)
(deeming it relevant whether argument first raised on appeal
prejudiced opposing party).


Footnote 17:

     See O'Neill Investigations, Inc. v. Illinois Employers Ins. of
Wausau, 636 P.2d 1170, 1175 n.7 (Alaska 1981) (deeming argument
preserved because it was "not dependent on any new or controverted
facts, and because it [was] closely related to [the] trial court
theory").