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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Christiansen v. Christiansen (01/26/2007) sp-6094

Christiansen v. Christiansen (01/26/2007) sp-6094, 152 P3d 1144

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

            THE SUPREME COURT OF THE STATE OF ALASKA

ALMERIA CHRISTIANSEN, in her )
capacity as the Administrator of ) Supreme Court No. S-11789
the Estate of WESLEY J. )
CHRISTIANSEN, and her personal ) Superior Court No. 3KO-02-262 CI
capacity, )
)
Appellant, ) O P I N I O N
)
v. ) No. 6094 - January 26, 2007
)
KENNY CHRISTIANSEN, )
)
Appellee. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial  District, Kodiak, Joel  H.  Bolger,
          Judge.

          Appearances:  Michael J. Walleri, Law Offices
          of   Michael   J.  Walleri,  Fairbanks,   for
          Appellant.  Laura L. Farley, Farley & Graves,
          P.C., Anchorage, for Appellee.

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

          BRYNER, Chief Justice.

I.   INTRODUCTION
          After  drinking  on  his  cousin  Kennys  boat,  Wesley
Christiansen  fell  from  a  dock and  drowned.   Wesleys  widow,
Almeria Christiansen, sued Kenny, arguing that Kenny had  a  duty
to  supervise,  monitor, and control Wesleys  drinking.   Almeria
acknowledged  that Kenny could not be held liable  under  Alaskas
dram  shop law, which immunizes social hosts, but argued that  he
owed  Wesley  duties  under federal maritime law  that  precluded
applying  state  law.  The superior court disagreed  and  granted
Kennys  motion  for partial summary judgment.   Almeria  appeals.
Because  we conclude that Alaskas social-host immunity  provision
neither   materially  prejudices  a  characteristic  feature   of
maritime   law  nor  interferes  with  its  proper  harmony   and
uniformity, we affirm the superior courts decision.
II.  FACTS AND PROCEEDINGS
          Wesley  Christiansen arrived at the city  dock  in  Old
Harbor, Kodiak, after a day of duck hunting.  He brought beer and
may  have been intoxicated when he arrived.  Wesleys cousin Kenny
was at the dock, having recently returned from a hunting trip  of
his  own.   Kenny was aboard his fishing vessel, the  Mekenna  C,
socializing  with his brother and a few friends.  Wesley  boarded
Kennys  vessel and proceeded to drink while aboard.  Some of  the
alcohol Wesley consumed may have been supplied by Kenny.
          Some  time  later  Wesley  announced  that  he  had  to
urinate.   One  of Kennys passengers suggested that Wesley  could
urinate  off  the end of the dock.  Wesley disembarked  from  the
Mekenna  C  and was not seen again until his body was  discovered
floating in the water near the Mekenna Cs starboard side.   State
troopers later concluded that Wesley had fallen from the  end  of
the dock.
          Almeria  Christiansen  filed  a  wrongful  death   suit
against  Kenny,  alleging in part that Kenny had violated  duties
owed  to  Wesley imposed by virtue of Kennys status as owner  and
captain of the Mekenna C.
          Kenny   contested  liability  and  moved  for   summary
judgment  on the ground that, as a social host, he owed no  legal
duty  to Wesley under Alaska law.1  In opposition, Almeria argued
that  federal maritime law applied and that it imposed a  general
duty  of reasonable care on Kenny, as well as specific duties  to
ensure  passengers  a  safe disembarkment and  to  supervise  and
control  their alcohol consumption while aboard his vessel.   She
acknowledged, though, that under Alaskas dram shop act Kenny owed
no duties to Wesley as a social host.
          Superior  Court  Judge Joel H. Bolger  granted  partial
summary  judgment for Kenny, ruling that Alaska law governed  the
case and that, under Alaskas dram shop act, Kenny had no duty  to
control Wesleys drinking.  The judge also rejected Almerias claim
for  negligent disembarkation, noting that Wesley had fallen from
the  dock,  not  from  Kennys  boat.  Judge  Bolger  nevertheless
allowed Almerias case to proceed on the limited theory that Kenny
might have caused the dock to become dangerously icy by operating
a  bilge  pump  that coated the dock with mist and ice.   Almeria
proceeded to a jury trial on this new icy-dock theory.
          After  being  instructed that [a] person  who  provides
alcoholic beverages to another person is not liable for  injuries
resulting  from that persons intoxication, unless the person  who
provides the alcohol holds a liquor license, the jury returned  a
special  verdict answering No to the question, Was the  defendant
Kenny Christiansen negligent?
          Almeria appeals.
III. DISCUSSION
        On appeal, Almeria challenges the superior courts order action.
          In granting Kennys motion for partial summary judgment,
the  superior court assumed that the facts of this case triggered
admiralty jurisdiction.3  We follow the same approach here.   But
the  exercise of admiralty jurisdiction . . . does not result  in
[the]   automatic   displacement  of   state   law.4    Admiralty
jurisdiction  precludes application of state  law  only  when  it
would work a material prejudice to the characteristic features of
[maritime]  law or would interfere[] with the proper harmony  and
uniformity  of [maritime] law in its international and interstate
relations.5
          The  state law at issue here, AS 04.21.020(a), provides
that  only persons who are licensed to sell alcohol may  be  held
civilly   liable  for  injuries  resulting  from   a   recipients
intoxication.6  By limiting liability to licensed  sellers,  this
provision of Alaskas dram shop act absolves social hosts of civil
liability  for  harm  resulting from the  intoxication  of  their
guests.7   In  so  providing,  Alaskas  law  follows  the   trend
reflected in many state dram shop and civil damages statutes.  At
common  law, dram shop immunity generally extended to  commercial
providers  and  social hosts alike.8  But most  states  have  now
narrowed  the scope of dram shop immunity by adopting  laws  that
allow commercial providers of alcohol to be held accountable  for
furnishing   liquor   to   intoxicated  persons   under   certain
circumstances, while continuing to hold social hosts immune:
          Generally, [dram shop] statutes only permit a
          cause  of  action  to be  brought  against  a
          person  or  entity who is in the business  of
          providing liquor for commercial remuneration,
          such  as a tavern owner, and not against  one
          who  furnishes  alcohol  as  a  mere  act  of
          hospitality    or    courtesy.    .    .    .
          [C]ivil-damages acts and dram  shop  statutes
          generally do not apply to social hosts[.][9]
          
          To  determine  whether the superior court  could  apply
Alaskas  dram shop act in a case brought under maritime law,  the
first question we must resolve is whether applying a law of  this
kind  would  result in material prejudice to [any] characteristic
feature[]  of  maritime  law.10   United  States  Supreme   Court
precedent suggests that a characteristic feature of admiralty law
is  one that originated in admiralty or has exclusive application
there[in].11
          Almeria  argues that AS 04.21.020s social-host immunity
provision violates this test because federal maritime law imposed
a  duty on Kenny to monitor, supervise, and possibly even control
          Wesleys drinking.  In support of this assertion she cites two
federal  district  court  cases and one  decision  by  the  Fifth
Circuit  Court  of Appeals.12  But these cases  fail  to  support
Almerias claim.  None of them deals with a vessel owner who acted
merely as a social host, and none purports to recognize or create
a   general  rule  of  maritime  law  that  would  abrogate   the
traditional  social-host immunity rule as it  existed  at  common
law.
          Given the lack of analogous precedent in maritime  law,
the  superior  court found no controlling federal  rule  imposing
liability  on  an  unlicensed social host.   We  agree.   In  the
absence  of a controlling federal rule, we conclude that  Almeria
has  not  demonstrated that a characteristic feature of  maritime
law  would  be materially prejudiced by applying AS 04.21.020  in
this case.
          We  must  separately ask whether applying AS 04.21.020s
social-host  immunity provision would interfere with  the  proper
harmony and uniformity of maritime law.13  Almeria maintains that
AS  04.21.020  would  interfere with the uniform  application  of
maritime laws wrongful death cause of action.14  Specifically, she
asserts that [w]hile general maritime law does not limit a  state
from  providing for remedies not present in federal maritime law,
state  law  may  not  impede[]  remedies  created  under  federal
maritime law.  Almeria argues that applying AS 04.21.020 in  this
case  would  impose [a] limit[] on recovery which would  infringe
upon  the  right  of  recovery created  in  federal  law.   Kenny
responds  that Alaska is free to apply its own law  here  because
there  is no controlling federal law governing unlicensed  social
host[s].15
          We   have  previously  noted  that  [c]ourts  apply   a
balancing test to decide issues of harmony and uniformity.16   As
one commentator explains,
          [S]tate  law  will  not be preempted  if  the
          state  has  a strong interest in the  subject
          matter  and  there is correspondingly  little
          need for uniformity; if, however, there is  a
          strong  federal interest, state law will  not
          be allowed to impair the essential uniformity
          of maritime law.[17]
          We are not convinced that applying AS 04.21.020 in this
case  would  impede  any strong federal interest.   The  maritime
cause  of action for wrongful death advances the federal interest
in  affording  decedents representatives an avenue for  recovery;
but  beyond  establishing the maritime laws interest in  ensuring
the  availability  of  an  action  for  wrongful  death,  Almeria
identifies  no strong federal interest in dictating  the  precise
scope of an actionable wrongful death claim.
          In  fact, as we have already observed, Almeria cites no
maritime  cases  that  have imposed social-host  liability  under
circumstances  comparable to those at issue here.   To  be  sure,
under  maritime  law  vessel  owners owe  visitors  aboard  their
vessels  a  general duty of exercising reasonable care under  the
circumstances of each case.18  But given the absence of case  law
extending  this duty to a social-host setting like the one  here,
          we fail to see any strong federal interest in demanding a uniform
rule  that would impose social-host liability; nor do we see  any
reasonable  possibility  that Alaskas  social-host  immunity  law
might impair the essential uniformity of maritime law.19
IV.  CONCLUSION
          In  summary, because the superior court correctly ruled
that   AS  04.21.020  could  be  applied  in  this  case  without
materially  prejudicing a characteristic feature of maritime  law
or  interfering with its proper harmony and uniformity, we AFFIRM
the superior courts judgment.
_______________________________
     1    See AS 04.21.020.

     2     We  review  awards of summary judgment de  novo.  See,
e.g., Bennett v. Weimar, 975 P.2d 691, 694 (Alaska 1999).

     3    A tort case falls within admiralty jurisdiction when it
satisfies  the tests of location and connection as  described  by
the  United  States Supreme Court in Jerome B. Grubart,  Inc.  v.
Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995).

     4    Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206 (1996)
(quoting   Jerome  B. Grubart, Inc., 513 U.S. at  545)  (internal
quotation marks omitted).

     5    Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 766
(Alaska  1999)  (quoting Hughes v. Foster Wheeler Co.,  932  P.2d
784, 787 (Alaska 1997)).

     6     AS  04.21.020,  Civil liability of  persons  providing
alcoholic beverages, provides, in relevant part:

          (a)  Except as provided under (b) and (d)  of
          this section, a person who provides alcoholic
          beverages to another person may not  be  held
          civilly  liable  for injuries resulting  from
          the  intoxication of that person  unless  the
          person  who provides the alcoholic  beverages
          holds a license authorized under AS 04.11.080
          04.11.220 or is an agent or employee of  such
          a licensee . . . .
          
(Emphasis added.)

     7     See  Chokwak  v. Worley, 912 P.2d 1248,  1254  (Alaska
1996)  (AS  04.21.020 extends civil immunity to social hosts  who
provide alcohol to minors); Mulvihill v. Union Oil Co., 859  P.2d
1310, 1311-12 (Alaska 1993) (AS 04.21.020 extended civil immunity
to  employer  acting  as  social host  by  providing  alcohol  to
employees  at  holiday party).  But see Gordon v. Alaska  Pacific
Bancorporation, 753 P.2d 721, 723 (Alaska 1988) (claim not barred
by  AS  04.21.020 where social host should have protected a guest
from the harmful presence of other intoxicated party-goers).

     8      Diane   Schmauder  Kane,  Annotation,  Social   Hosts
Liability  for  Death  or Injuries Incurred  by  Person  to  Whom
Alcohol was Served, 54 A.L.R. 5th 326 (1997).

     9    Id.

     10    Kodiak Island Borough, 991 P.2d at 766 (quoting Hughes,
932 P.2d at 787).

     11     Id.  at 767 (quoting American Dredging Co. v. Miller,
510 U.S. 443, 450 (1994)).

     12    See Reyes v. Vantage Steamship Co., Inc., 558 F.2d 238
(5th  Cir.  1977) (holding, in a maritime wrongful  death  action
filed  after  intoxicated  crewman jumped  from  his  vessel  and
drowned while swimming toward a buoy, that vessel owner could  be
liable  for  apportioned  fault  because  owner  acted  at  least
negligently by regularly selling large quantities of  alcohol  to
crewmembers  in  violation  of applicable  federal  regulations);
Young  v. Players Lake Charles, L.L.C., 47 F. Supp. 2d 832  (S.D.
Tex.  1999)  (denying  motion to dismiss under  state  dram  shop
immunity   provision   and  holding  casino  riverboat   operator
potentially liable under maritime law for damages resulting  from
drunken  driving  homicide  caused by intoxicated  casino  patron
while  driving  home after casino served him numerous  drinks  as
inducement to gamble); Thier v. Lykes Bros., Inc., 900  F.  Supp.
864  (S.D.  Tex. 1995) (vessel owner held liable for injuries  to
seaman  cadet  caused by cadets supervising officer,  who  became
intoxicated aboard the vessel while it was in port and recklessly
caused an auto accident while driving the cadet to a restaurant).

     13     Kodiak  Island  Borough, 991 P.2d  at  767  (citation
omitted).

     14    See Norfolk Shipbuilding & Drydock Corp. v. Garris, 532
U.S.  811, 820 (2001) (The maritime cause of action that  Moragne
established   for  unseaworthiness  is  equally   available   for
negligence.); Moragne v. States Marine Lines, Inc., 398 U.S. 375,
409  (1970) ([A]n action does lie under general maritime law  for
death caused by violation of maritime duties.).

     15     Cf.  Wilburn Boat Co. v. Firemans Fund Ins. Co.,  348
U.S.  310, 320-21 (1955) (holding that in the absence of  federal
legislation or conflicting rule judicially established by federal
courts, regulation of marine insurance left to states); Thomas J.
Schoenbaum,  1 Admiralty and Maritime Law  4-3, at 169  (4th  ed.
2004) (state law may fill gaps and supplement the maritime law).

     16    Kodiak Island Borough, 991 P.2d at 767 (citing Kossick
v.  United Fruit Co., 365 U.S. 731, 738-42 (1961); Huron Portland
Cement Co. v. City of Detroit, 362 U.S. 440, 442-48 (1960);  Just
v.  Chambers, 312 U.S. 383 (1941); Ballard Shipping Co. v.  Beach
Shellfish,  32  F.3d  623, 628 (1st Cir.  1994);  Brockington  v.
Certified Elec. Inc., 903 F.2d 1523, 1530 (11th Cir. 1990)).

     17     Schoenbaum,  supra  note  15,  at  169-70  (footnotes
omitted).

     18     Kermarec  v. Compagnie Generale Transatlantique,  358
U.S. 625, 632 (1959).

     19    Cf. Meyer v. Carnival Cruise Lines, 1994 WL 832006, at
*3-4  (N.D.  Cal. Dec. 29, 1994) (noting that extensive  research
has uncovered no federal maritime dram shop rule and holding that
need  for  uniformity does not preclude applying California  dram
shop  act  in  negligence action under maritime law for  injuries
suffered by cruise ship passenger at sea).
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