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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Winschel v. Brown (11/09/2007) sp-6194

Winschel v. Brown (11/09/2007) sp-6194, 171 P3d 142

     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

SEAN WINSCHEL, )
) Supreme Court No. S- 12378
Appellant, )
) Superior Court No. 4FA-05-1525 CI
v. )
)
BRIAN R. BROWN, ) O P I N I O N
)
Appellee. ) No. 6194 November 9, 2007
)
Appeal    from     the
          Superior Court of the State of Alaska, Fourth
          Judicial District, Fairbanks, Randy M. Olsen,
          Judge.

          Appearances:  Kenneth P. Ringstad, Paskvan  &
          Ringstad,  P.C.,  Fairbanks,  for  Appellant.
          Kim  S. Stone, McConahy, Zimmerman & Wallace,
          Fairbanks, for Appellee.

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

          BRYNER, Justice.

I.   INTRODUCTION
          Sean   Winschel  appeals  a  summary  judgment   ruling
dismissing his negligence suit against Brian R. Brown.   Winschel
suffered a head injury while driving his four-wheel ATV  when  he
struck  a  light pole suspended over a bike path that runs  along
the Johansen Expressway in Fairbanks.  The state-owned light pole
had  fallen across the path approximately ninety minutes  earlier
when  Brown  lost  control of his vehicle on the  expressway  and
struck the base of the pole.  Winschel sued Brown for negligence,
and  both parties moved for summary judgment.  The superior court
granted  summary judgment to Brown, concluding that  because  the
circumstances  of Winschels accident were not foreseeable,  Brown
owed  no  duty to Winschel and could not have been the  proximate
cause  of  his injury.  Because Winschel has presented sufficient
evidence  to  raise  issues of material fact regarding  duty  and
causation, we reverse and remand for further proceedings.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          On  October  23, 2004, at around 12:30 p.m.,  Brian  R.
Brown   was  driving  his  GMC  Suburban  west  on  the  Johansen
Expressway in Fairbanks.  As he entered a curve about  a  quarter
mile west of College Road, he came upon a two-vehicle accident on
the left shoulder.  Although the vehicles had been moved from the
main  portion  of  the road, flares lit to warn  drivers  of  the
collision  had slid or rolled down the icy, banked pavement  into
Browns  lane  of travel.  As he attempted to shift  lanes,  Brown
lost control of his vehicle, spun around, and struck the base  of
the state-owned pole, causing it to topple across a nearby chain-
link  fence.1  Held up by the fence, the pole extended  across  a
snow-covered  bike and pedestrian path that ran parallel  to  the
expressway at that point.
          The collision with the light pole dented Browns bumper,
but   he  was  not  injured.   Fairbanks  Police  Officer  Peyton
Merideth,  who was already at the scene of the earlier  accident,
came  over  to assist Brown.  The officer warned Brown  that  the
state  Department of Transportation (DOT) might bill him for  the
cost of repairing the pole and would send a letter regarding  any
costs.2   According  to Brown, the officer took  his  identifying
information  and instructed him to leave the expressway.3   Brown
then  returned  to his vehicle and drove away.  Officer  Merideth
wrote  in his collision report that he believed Brown was driving
too  fast  for the road conditions, though he did not cite  Brown
due to the confusing road flare pattern in the roadway.
          While  at  the  accident scene, Officer  Merideth  also
reported the downed pole to Fairbanks Police Department dispatch,
which  was  responsible for notifying the  DOT.  He  told  police
dispatch  that  a  light pole had been knocked over,  that  there
werent  any live wires, and that the pole was not in the roadway.
The  officer  did  not notice that the pole was across  the  bike
path,  so he did not mention it in his communication to dispatch.
The  record does not reflect what steps police dispatch  took  to
notify the state DOT.
          Approximately ninety minutes later, at around  2  p.m.,
Sean  Winschel left his home off Danby Street to stop by a nearby
U-Haul  business where he worked.  To reach his workplace   which
was  less than one mile from his home  Winschel decided to  drive
his  Honda  four-wheel ATV on the bike path that runs  along  the
expressway between Danby Street and College Road.
          Winschel,  who  was not wearing a helmet,  entered  the
path  heading  east  near  the crest of  a  hill.   Approximately
seventy yards from this point, the path curved to the left at the
bottom  of the hill.  As he drove down the hill toward the downed
pole, Winschel was traveling in third gear at an estimated twenty-
five  miles  per hour. Winschel saw the light pole  at  the  last
second.  He tried ducking to avoid the pole, but it was too late.
Winschels  head  struck the pole, fracturing  his  skull.   After
          being treated at the scene by paramedics, Winschel was taken to
Fairbanks  Memorial  Hospital and later flown  to  Anchorage  for
medical  care.   Shortly after Winschels accident,  a  state  DOT
repair crew arrived at the accident site.
     B.   Procedural History
          On  May 2, 2005, Winschel sued Brown, alleging that his
injuries  were caused by Browns negligence in losing  control  of
his Suburban on the expressway and  failing to mark or remove the
downed pole.  Both parties filed motions for summary judgment  on
the  issues  of  duty and causation.  On June 9,  2006,  Superior
Court Judge Randy M. Olsen ruled in Browns favor, concluding that
[b]ased  on  the  unique  facts of this  case,  including  police
oversight of the accident scene and police direction to leave the
area  after  the police had notified DOT, Brown owed no  duty  to
Winschel and was not a proximate cause of the accident.   On  the
issue of proximate cause, the court concluded that Winschels  own
illegal conduct was a superseding cause.  In addition, the  court
ruled  that because of his illegal use of a motorized vehicle  on
the  bike path, Winschel was barred as a matter of public  policy
from   recovering   damages.   Winschel  filed   a   motion   for
reconsideration, which the court denied before entering  a  final
judgment  in Browns favor.  Winschel appeals the superior  courts
grant of summary judgment to Brown.
III. STANDARD OF REVIEW
          We   independently   review  orders  granting   summary
judgment  by  considering the entire record  in  the  light  most
favorable to the non-moving party to determine whether it reveals
any genuine issues of material fact.4  A party moving for summary
judgment must make a prima facie showing that there is no genuine
issue  of  material fact and must demonstrate that the movant  is
entitled  to  judgment as a matter of law.5   To  defeat  summary
judgment,  the  opposing  party  may  in  turn  offer  admissible
evidence   reasonably  tending  to  dispute  the  moving   partys
evidence, thus establishing that a genuine issue of material fact
remains to be tried.6
IV.  DISCUSSION
     A.   Duty
          Winschel  argues  that  the  superior  court  erred  in
granting  summary  judgment to Brown on the issue  of  duty.   He
contends that, as a driver on the expressway, Brown owed  a  duty
of  reasonable care to users of the adjacent bike path  based  on
general principles of negligence, Alaska traffic regulations, and
the  public policy factors set forth in D.S.W. v. Fairbanks North
Star Borough School District.7
          A  fundamental  tenet  of  negligence  law  is  that  a
defendant  owes  a  duty  of due care  to  all  persons  who  are
foreseeably endangered by his conduct, with respect to all  risks
which  make the conduct unreasonably dangerous.8  In the  context
of  determining a duty, this court has taken an expansive view of
foreseeability.  We have made it clear that foreseeability  is  a
broad  concept and does not require that the precise  harm  in  a
given case be predictable.9
          In addition, our cases have drawn a distinction between
questions concerning the existence of a duty and those related to
          the scope of an existing duty.10  We have stated that summary
judgment  is appropriate for the first type of inquiry  that  is,
where the only reasonable inference from the undisputed facts  is
that one party owed another no duty at all or owed a duty clearly
and  vastly  narrower in scope than the one that the other  party
asserts.11  Conversely, summary judgment on questions of duty  is
disfavored  where the issue is one of the precise scope  of  that
duty, or of whether particular conduct did or did not breach it.12
          In  granting Browns motion for summary judgment on  the
issue  of  duty,  the  superior  court  reasoned  that  Winschels
accident was not foreseeable because of Winschels illegal use  of
an  ATV  on  the  bike  path.  As the court stated,  it  was  not
foreseeable  that in a small window of time, an illegal  user  of
the  bike  path,  proceeding at a speed  far  in  excess  of  the
standard  of  the intended use, would come upon the downed  pole.
Along  the  same  line, the court invoked the general  rule  that
illegal acts will break a chain of causation, suggesting that the
rule  was particularly apt in this case because it would be  poor
public  policy to require an individual who committed an  act  of
negligence  to have to assume and anticipate additional  unlawful
conduct by third parties.
          The   superior  court  also  acknowledged  that   after
creating  the hazard, Brown had a duty to take steps to  have  it
removed.  But the court concluded that Brown terminated this duty
through  his  contact  with the Fairbanks police  who,  in  turn,
notified  the state DOT.  As the court saw it, there is no  moral
blame to be attached to Browns conduct after DOT was notified and
he was directed to leave the area.
          In  his original complaint and his opposition to Browns
motion  for  summary judgment, Winschel argued that Brown  had  a
duty to exercise reasonable care not only after hitting the light
pole,  but  before  the  collision  as  well.   Winschel  further
asserted  that Browns duty extended to him because  a  reasonably
probable  and foreseeable consequence of Browns act  of  knocking
over  the  light pole . . .  is that someone will hit  the  light
pole with their head.  Winschel renews these arguments on appeal,
adding that the superior court failed to recognize that he raised
genuine issues of material fact as to whether Brown breached  his
duty  by  driving too fast on the expressway given the  road  and
weather conditions.
          We  agree  with Winschel that summary judgment  on  the
question  of  duty  was  inappropriate.  As  the  superior  court
correctly  recognized, the critical inquiry is whether  Winschels
injury  was  within  the scope of foreseeable risks  from  Browns
conduct.   The courts analysis, however, focused only  on  Browns
actions after he struck the light pole  that is, whether he  took
any  steps to notify or warn others of the hazard.  In doing  so,
the  court  overlooked Winschels contention  that  Brown  had  an
initial duty to use reasonable care in driving on the expressway.13
Winschel  reasonably  asserts that this duty  required  Brown  to
drive  at  a  speed  appropriate for  road  conditions,  maintain
control of his vehicle, and keep his vehicle within a single lane
of traffic.
          In  addition  to overlooking the first part  of  Browns
          duty, the superior court applied an overly narrow standard in
assessing  the foreseeability of harm to Winschel.  For  example,
the court emphasized the illegality of Winschels use of the four-
wheeler,  declaring it unforeseeable that in a  small  window  of
time, an illegal user of the bike path, proceeding at a speed far
in  excess  of the standard of the intended use, would come  upon
the  downed pole.  This approach is contrary to our teaching that
foreseeability does not require that the precise harm in a  given
case be predictable.14  Rather, as Dan B. Dobbs states in The Law
of Torts, the harm need only be one of the cluster of harms in  a
generally  foreseeable category.15  To illustrate  this  concept,
Dobbs offers the following illustration:
          [If]  a  speeding  driver crashes  into  your
          living  room,  the  fact  that  a  reasonable
          person would not have specifically recognized
          a  risk of harm to living room furniture will
          not assist the driver to avoid liability.  It
          is one of the cluster of harms in a generally
          foreseeable category, and that is enough.[16]
          Here, the generally foreseeable category of harms  from
the  toppled  pole included injuries to users of  the  bike  path
because  of the paths close proximity to the expressway near  the
downed  pole.   Thus, if Browns negligence led to  his  collision
with the pole, then the duty of care he owed as a driver extended
to  users  of the bike path near the downed pole.  That Winschels
unlawful  use of the ATV on the path may not have been  precisely
foreseeable is irrelevant; his use of the path puts  him  in  the
same  general category as lawful users of the path placed at risk
by   a  speeding  or  out-of-control  driver.   In  other  words,
Winschels  violation of the regulation banning motorized  use  of
the bike path does not negate the foreseeability of the harm that
occurred.
          Beyond  establishing that Brown owed a general duty  to
users  of the bike path, Winschel raised issues of material  fact
regarding the breach of that duty in opposition to Browns  motion
for  summary  judgment.   Specifically,  Winschel  cited  Officer
Merideths  deposition testimony that Brown was driving  too  fast
for road conditions, as well as Browns own admission that he lost
control of his vehicle while attempting to switch lanes to  avoid
a  disabled  car  in  the expressways left lane.   These  factual
issues  are enough to establish a cause of action for negligence,
precluding summary judgment for Brown on the issues of  duty  and
breach.
          Finally,  we  address the superior courts determination
that  the  involvement of Fairbanks police and the state  DOT  in
responding  to  Browns accident terminated any  duty  that  Brown
might  have  owed Winschel.  As noted above, the  superior  court
appears  to have based its decision on the premise that the  only
duty  Brown owed Winschel (and other users of the bike path)  was
to  take steps to have the hazard removed.  As we have explained,
this  premise is incomplete because it overlooks  Browns duty  to
use  reasonable care in driving on the icy expressway so that  he
would avoid striking the light pole.  Even if Brown did act  with
reasonable  care after the collision, this would not  negate  the
          factual issues raised by Winschel as to whether Brown breached
the duty he owed as a driver on the expressway.
          Likewise,  the superior courts reliance on the  general
rule  that illegal acts will break a chain of causation fails  to
support  its  determination that Brown owed no duty to  Winschel.
The courts rationale on this point appears to be based on one  of
two  theories: that Winschels own conduct was a superseding cause
of  his  injury,  or  that Winschels use of the  ATV  placed  him
outside the scope of generally foreseeable risks and, thus, Brown
did  not  owe  him  a  duty of care.  Neither theory  alters  our
conclusion that summary judgment should not have been granted  on
the question of duty.  As we explain in greater detail below, the
blameworthiness of Winschels own conduct should be  evaluated  by
the  trier  of fact under Alaskas comparative fault  regime;  his
conduct  should  not  constitute  a  complete  bar  on  recovery.
Alternatively,  if  the court, in referring to Winschels  illegal
acts, meant that his conduct was not foreseeable and thus no duty
was  owed,  we  refer  again  to our well-established  rule  that
foreseeability is to be defined broadly rather than narrowly.17
          Because we find that Winschel owed Brown a duty of care
under  general principles of negligence, we reverse the grant  of
summary judgment on the issue of duty.18
     B.   Causation
          Winschel contends that the superior court also erred in
granting summary judgment to Brown on the issue of causation.  As
with  the  question  of duty, he argues that  because  he  raised
issues of material fact, the question of causation should be left
to the trier of fact.
          Alaska   follows   the  substantial  factor   test   of
causation,  which generally requires the plaintiff to  show  that
the  accident  would  not have happened but  for  the  defendants
negligence  and  that  the  negligent act  was  so  important  in
bringing  about  the  injury  that reasonable  individuals  would
regard it as a cause and attach responsibility to it.19  We  have
previously  recognized  that determinations  of  proximate  cause
usually  involve  questions of fact within the  province  of  the
jury;20  proximate  cause  becomes a matter  of  law  only  where
reasonable minds cannot differ.21
          We  have  also recognized that a superseding cause  can
relieve   the  defendant  of  liability  even  if  the  defendant
committed a negligent act that proximately caused an injury.22  To
determine whether conduct amounts to a superseding cause, we rely
on  the  approach set out in the Restatement (Second) of Torts.23
But we have emphasized that, under the Restatements approach,  an
action of a third person which intervenes to injure the plaintiff
will shield a negligent defendant only where after the event  and
looking  back from the harm to the actors negligent  conduct,  it
appears  .  . . highly extraordinary that it should have  brought
about the harm.24
          Here,  the  but  for  element of causation  is  not  in
dispute.  Winschels accident would not have occurred if Brown had
not  lost  control  of  his vehicle and struck  the  light  pole.
Rather,  the  questions of causation disputed  here  are  whether
Browns  actions  were a substantial factor in  causing  Winschels
          injuries and whether Winschels own conduct amounted to a
superseding cause that broke the causal link to Brown.
          In  granting  summary judgment to Brown,  the  superior
court  concluded  that Winschels own conduct  driving  the  four-
wheeler  on  the  bike path at an estimated speed of  twenty-five
miles  per  hour   was an unforeseeable, superseding  cause  that
broke the chain of causation and relieved Brown of any liability.
While  the  court ruled that [t]he proximate cause  of  Winschels
accident  was his own illegal conduct, the court also  suggested,
as  indicated  above, that the intervention of  Fairbanks  police
firmly  severed  any  causal  link  between  Browns  conduct  and
Winschels injury.
          We  disagree.   Based  on  the  evidence  presented  by
Winschel,  we  conclude that the issue of proximate cause  should
have been left to the jury.  Specifically, Winschel raised issues
of  material  fact  as  to  whether Brown  was  traveling  at  an
appropriate  speed for road conditions and whether the  pole  was
visible  against  overcast  skies.  Because  of  this,  when  the
evidence  is  viewed  in  the light most favorable  to  Winschel,
reasonable individuals could regard Browns conduct as a cause  of
Winschels injury and attach responsibility to it.
          Moreover,  Winschels own conduct did not  rise  to  the
level  of  a superseding cause; nor do we believe that  Winschels
actions  should,  as  a matter of law, be regarded  as  the  sole
proximate cause of his injuries.  As with the question  of  duty,
proximate  cause requires only that the general kind of  harm  be
foreseeable for an actors conduct to be considered the  proximate
cause of the plaintiffs injuries.25  Here, given the closeness of
Browns  conduct, both in time and location, and the proximity  of
the  expressway to the bike path, reasonable persons could attach
liability  for Winschels injury to Browns actions and could  also
find  that  it  was not highly extraordinary that  those  actions
brought about the harm.26
          Similarly,  we reject the finding that the  involvement
of  Fairbanks  police  and  the  state  DOT  severed  any  causal
connection between Browns actions and Winschels injury.  Nor  can
the  agencies actions be considered a superseding cause.   Simply
put,  their  actions  did not make it highly  extraordinary  that
Browns  alleged  negligence in losing  control  of  his  car  and
striking the light pole could lead to an injury on the bike path.
This  conclusion  is  supported by the Restatement  factors:  the
intervention of the agencies did not bring about a harm different
in  kind  from  what  would otherwise have resulted  from  Browns
alleged   negligence;   nor  did  their   involvement   operat[e]
independently  of  any situation created by the actors  [alleged]
negligence.27
          For  these reasons, we reverse the rulings on proximate
cause and superseding causation.
     C.   Illegality of Winschels Conduct
          The  superior court also ruled that Winschel was barred
from recovering damages because at the time of his injury he  was
violating a state regulation that bans motorized traffic on  bike
paths.28  Although the court believed that Winschels illegal  use
of  the  bike  path  affected the issue of  duty  by  making  his
          injuries unforeseeable, it also viewed the violation as a
superseding  cause, referring to [t]he general rule that  illegal
acts  will  break a chain of causation.  In addition,  the  court
seemed  to  view  Winschels  violation  as  precluding  him  from
recovering  damages  as  a  matter of  public  policy  under  the
principle that parties are not generally allowed to recover as  a
result  of their own wrongdoing.  The court recognized  that  the
legislature  had  codified this policy  in  AS  09.65.210,  which
applies  only to plaintiffs injured while committing felonies  or
driving under the influence of alcohol or controlled substances29
offenses that have no application here.  But the court also noted
that, in Ardinger v. Hummell,30 we had indicated a willingness to
extend  the same underlying principle to crimes other than  those
listed  in AS 09.65.210.  Relying on Ardinger, the court reasoned
that  the policy against allowing parties to recover as a  result
of their own wrongdoing barred Winschels claim because his injury
was  precisely the type of harm that the regulation  he  violated
sought  to  prevent.  Winschel challenges this ruling,  insisting
that  under Alaska law, comparative fault does not bar  recovery.
We agree.31
          The  superior court relied on a mistaken  view  of  our
ruling  in  Ardinger.  There, we began by describing  the  well[-
]established  rule that  one who violates a criminal  statute  is
not deprived of all protection against the torts of others. 32  We
then recognized
          a public policy exception to this rule:  [I]f
          the  injured  person has violated  a  statute
          designed  to prevent a certain type of  risk,
          he is barred from recovery for harm caused by
          violation of the statute if, but only if, the
          harm resulted from a risk of the type against
          which  the  statute  was  intended  to   give
          protection.[33]
Yet we went on to emphasize that this public policy exception  is
narrow:
          [I]n  those cases in which recovery is barred
          on  public policy grounds, the result mirrors
          the  outcome  of  the abandoned  contributory
          negligence  rule:   Responsibility   is   not
          necessarily allocated in proportion to fault,
          and  one  party  is exempted  from  liability
          altogether.   It  is  therefore   only   with
          considerable  prudence  that  we  invoke  the
          public    policy   bar   against    recovery.
          Accordingly,  we  have  applied  the   public
          policy rationale for barring recovery only in
          cases involving serious criminal conduct that
          intentionally   threatened  the   safety   of
          others, such as homicide, rape, and arson.[34]
          Ardinger involved an unlicensed and underage driver who
was  killed in a single-vehicle collision that occurred  when  he
drove  a  car  without  the owners knowledge  or  permission,  in
violation of Alaskas joyriding statute; the boys mother brought a
wrongful death action against a fourteen-year-old friend  of  the
          driver who had let the driver use her mothers car.35  In these
circumstances,  we declined to apply the public policy  exception
to  bar the wrongful death claim, holding both that the violation
does   not  represent  the  level  of  serious  criminal  conduct
generally necessary to bar recovery and that
          the harm . . . did not clearly result from  a
          risk of the type against which [the joyriding
          statute]  was  intended to  give  protection.
          That  statutory provision . . . was  designed
          to  prevent theft and the consequent harm  to
          property.   The  harm in this  case  was  not
          directly  caused by the act  of  theft.   The
          causal  nexus between [the drivers] violation
          of  the  statute and his death  is  therefore
          tenuous.[36]
          Here,  as  in  Ardinger, Alaskas statute  adopting  the
public  policy  exception  AS 09.65.210  does not  bar  Winschels
recovery because his violation of the bike-path regulation is not
covered  by  the  statute.   Nor can the  policy-based  exception
described in Ardinger apply.  The regulation at issue here, which
prohibits  driving a motorized vehicle on a bike path,  does  not
prohibit  the  kind  of  serious criminal  conduct  described  by
Ardinger  as  a  prerequisite  for the  exception   conduct  that
intentionally threatened the safety of others, such as  homicide,
rape, and arson.37
          Neither  does  the harm at issue  in this case  clearly
result  from  a  risk  of the type against which  [the  bike-path
regulation]  was intended to give protection. 38  The  regulation
prohibiting motorized use of bike paths is primarily designed  to
protect  non-motorized bike-path users from harm, not to  protect
motorized   users  from  hurting  themselves.   Moreover,   under
Winschels version of the incident  which we must accept  as  true
in   reviewing  the  challenged  summary  judgment  ruling    the
circumstances  that  led  to  the injury  do  not  seem  uniquely
attributable  to  his  use of a motorized vehicle.   As  Winschel
described   it,   the  accident  occurred  without   warning   or
opportunity  to  stop as he was rounding a  blind  curve  at  the
bottom  of  a  hill.  Winschel was driving an ATV that  had  five
gears;  he  was  in third gear, was not speeding,  and  had  just
entered  the  bike path, which ATVs frequently  used  during  the
winter.    Under  these  circumstances  the  risk  arising   from
Winschels  use of the ATV seems roughly comparable  to  the  risk
that a bicyclist, skateboarder, or wintertime skier might face on
the  same  path.  As in Ardinger, the nexus between the violation
and the harm at issue is therefore tenuous.39
          For these reasons, we conclude that Winschels violation
of  the  bike-path regulation does not bar his claim.40  Although
Winschels violation may well have significant weight in assessing
Winschels   proportionate  share  of  the  fault  under   Alaskas
comparative negligence regime,41 it does not, as a matter of law,
disqualify Winschel from asserting his claim.42
V.   CONCLUSION
          For  these  reasons, we REVERSE the  decision  granting
summary judgment to Brown and REMAND for further proceedings.
_______________________________
     1     The  light pole was a breakaway pole designed to knock
over easily if hit.

     2     The Alaska DOT is responsible for maintaining both the
light  pole in question and the Johansen Expressway in Fairbanks.
According  to  Officer  Merideth, the state  is  responsible  for
deciding  whether to repair the damage, or when the  repair  work
will occur.

     3     Officer Merideth stated in his affidavit that  he  did
not  remember telling Brown to leave the scene, or that he  might
have  to pay for the damage to the pole.  But he stated that such
advice  would  not  be  inconsistent with  typical  practice  and
protocol of [the Fairbanks Police Department].

     4     Olson v. Teck Cominco Alaska, Inc., 144 P.3d 459,  463
(Alaska 2006).

     5    See Alaska R. Civ. P. 56(c).

     6    See Olson, 144 P.3d at 463.

     7     D.S.W.  v. Fairbanks N. Star Borough Sch.  Dist.,  628
P.2d 554, 555 (Alaska 1981).

     8    Div. of Corr. v. Neakok, 721 P.2d 1121, 1125-26 (Alaska
1986)  (citing Rodriguez v. Bethlehem Steel Corp., 525 P.2d  669,
680 (Cal. 1974)).

     9     P.G. & R.G. v. State, Dept of Health & Human Servs., 4
P.3d 326, 332 n.11 (Alaska 2000).

     10    Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 975
(Alaska 2005).

     11    Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell,
956  P.2d 1199, 1203-04 (Alaska 1998); see also Neakok, 721  P.2d
at  1127  n.7  (While  a specific case-by-case  determination  of
foreseeability and causation lies within the province of a  jury,
the existence of a duty is a question of law.).

     12    Arctic Tug, 956 P.2d at 1203.

     13     By knocking over the light pole so that it obstructed
the  bike  path, Brown activated a duty of due care that required
him  to take reasonable steps to protect others from being harmed
by  the hazard, and this duty applied regardless of whether Brown
acted  negligently in hitting the pole.  See Restatement (Second)
of  Torts  321 (1965) (If the actor does an act, and subsequently
realizes  or  should realize that it has created an  unreasonable
risk  of causing physical harm to another, he is under a duty  to
exercise  reasonable  care  to  prevent  the  risk  from   taking
effect.).

     14    P.G. & R.G., 4 P.3d at 332 n.11.

     15    Dan B. Dobbs, The Law of Torts 336 (2001 & Supp. 2007).

     16    Id. at 335-36.

     17     See P.G. & R.G., 4 P.3d at 334 ([F]oreseeability does
not imply an ability to predict precise actions or injuries: When
the  risk  created  causes damage in fact,  insistence  that  the
precise  details  of the intervening cause be  foreseeable  would
subvert the purpose of that rule of law.  (quoting W. Page Keeton
et  al.,  Prosser and Keeton on the Law of Torts  43,  at  280-81
(5th ed. 1984))).

     18     Our  ruling  makes it unnecessary to reach  Winschels
argument  that the public policy factors in D.S.W.  v.  Fairbanks
North  Star Borough School District support imposing  a  duty  on
Brown.

     19     Vincent by Staton v. Fairbanks Meml Hosp.,  862  P.2d
847, 851 (Alaska 1993).

     20     P.G.  & R.G., 4 P.3d at 334; Turnbull v. LaRose,  702
P.2d 1331, 1336 (Alaska 1985).

     21    P.G. & R.G., 4 P.3d at 334.

     22     See Sharp v. Fairbanks N. Star Borough, 569 P.2d 178,
182 (Alaska 1977).

     23    Restatement (Second) of Torts  435.

     24     Griffith v. Taylor, 12 P.3d 1163, 1168 (Alaska  2000)
(emphasis and alteration in original) (quoting Williford v.  L.J.
Carr  Invs.,  Inc.,  783  P.2d  235,  237  (Alaska  1989));   see
Restatement (Second) of Torts  435 cmt. c.

          The  Restatement also lists specific considerations for
determining whether an intervening force amounts to a superseding
cause.  These considerations include (1) whether the intervention
brings  about  harm  different in  kind  from  that  which  would
otherwise  have resulted from the actors negligence; (2)  whether
the intervening force is operating independently of any situation
created by the actors negligence, or, on the other hand, is or is
not  a  normal  result  of  such a  situation;  (3)  whether  the
operation of the intervening force is due to a third persons  act
or  to  his failure to act; (4) whether the intervening force  is
due  to  an  act of a third person which is wrongful  toward  the
other and as such subjects the third person to liability to  him;
and  (5)  the degree of culpability of a wrongful act of a  third
person  which sets the intervening force in motion.   Restatement
(Second) of Torts  442.

     25    Dobbs, supra note 15, at 466.

     26    Griffith, 12 P.3d at 1168.

     27    See Restatement (Second) of Torts  442.

     28     See 13 Alaska Administrative Code (AAC) 02.455(g) (No
snowmobile or other off-highway vehicle may cross or travel on  a
sidewalk,   a   location  intended  for   pedestrian   or   other
nonmotorized traffic, an alley, or a vehicular way or area  which
is not open to snowmobile or off-highway vehicle operation . .  .
.).

     29     AS  09.65.210 provides in relevant part that a person
who  suffers  personal injury or death . .  .  may  not  recovery
damages  .  . . if the injury or death occurred while the  person
was  .  .  .  engaged in the commission of a felony .  .  .  [or]
operating  a  vehicle, aircraft, or watercraft  while  under  the
influence of intoxicating liquor or any controlled substance.

     30    Ardinger v. Hummell, 982 P.2d 727 (Alaska 1999).

     31     See  Smith v. Ingersoll-Rand Co., 14 P.3d 990, 992-93
(Alaska  2000)  (recognizing  that, under  AS  09.17.060,  Alaska
relies  on a system of comparative fault similar to the  doctrine
of comparative negligence).

     32     Ardinger, 982 P.2d at 735 (quoting W. Page Keeton  et
al.,  Prosser  and Keeton on the Law of Torts  36,  at  232  (5th
ed.1984)).

     33     Id.  (alteration  in original)  (quoting  Restatement
(Second) of Torts   889 cmt. b).

     34    Id. at 736 (citations omitted).

     35    Id. at 729-30.

     36     Id. at 736-37 (quoting Restatement (Second) of  Torts
 889 cmt. b).

     37    Id. at 736.

     38     Id. (quoting Restatement (Second) of Torts  889  cmt.
b).

     39    Id. at 737.

     40     Although Brown claims that Winschel waived this point
by  failing to include it in his points on appeal or argue it  in
his  opening  brief, we find no merit to this  claim.   Winschels
points  on appeal asserted general challenges to the trial courts
summary  judgment  order  and its order denying  reconsideration,
thus  giving  Brown  sufficient notice that all  aspects  of  the
courts ruling were at issue.  See, e.g.,  Native Vill. of Eklutna
v.  Bd.  of  Adjustment, 995 P.2d 641, 646  (Alaska  2000).   The
superior   courts  ruling  on  summary  judgment  discussed   the
exception  barring claims based on illegal conduct  as  an  issue
affecting  both  duty and proximate causation; Winschels  opening
brief generally addressed both issues, seeking to establish  that
he  had raised triable issues of fact sufficient to avoid summary
judgment.  After Browns brief then focused on Winschels violation
as  an  independent bar to recovery, Winschel replied  to  Browns
argument.   In  denying Browns claim of waiver, Winschel  insists
that since his briefing established a prima facie case precluding
summary judgment, Brown had the burden of asserting his theory of
superseding causation, thus making it appropriate for Winschel to
reply  after Brown argued the point.  Although it certainly would
have  been  better practice for Winschel to raise these arguments
in  his opening brief, his explanation for failing to raise  them
earlier is not wholly implausible.  More important, when Winschel
later  did  argue the point in his reply, his arguments  did  not
depend  on new facts, were closely related to other arguments  at
trial and in his opening brief, and could have been gleaned  from
the  pleadings; under these circumstances, we decline to view the
issue as having been waived.  See, e.g., State Farm Auto Ins. Co.
v. Raymer, 977 P.2d 706, 711 (Alaska 1999).

     41    See AS 09.17.060 (codifying comparative negligence).

     42     As Dobbs confirms in his treatise, the fact that  the
plaintiff  is  guilty  of  contributory  negligence  per  se   in
violating  a  statute shows negligence but it does not  show  how
much,  so  a  comparison of the plaintiffs per se fault  and  the
defendants  negligence is still appropriate.  Dobbs,  supra  note
15, at 526 n.18.

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