Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Parnell v. Peak Oilfield Service Co. (11/09/2007) sp-6198

Parnell v. Peak Oilfield Service Co. (11/09/2007) sp-6198, 174 P3d 757

     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

SHANNON PARNELL, )
) Supreme Court No. S- 11880/11896
Appellant/Cross-Appellee, )
) Superior Court No. 3KN-03-263 CI
v. )
)
PEAK OILFIELD SERVICE CO.; ) O P I N I O N
PEAK ALASKA VENTURES, INC.; )
and NABORS ALASKA SERVICES ) No. 6198 November 9, 2007
CORP., )
)
Appellees/Cross-Appellants. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial   District,   Kenai,   Charles    T.
          Huguelet, Judge.

          Appearances: Michael W. Flanigan,  Walther  &
          Flanigan,   Anchorage,  for  Appellant/Cross-
          Appellee.  Gary A. Zipkin and Susan M.  West,
          Guess & Rudd, Anchorage, for Appellees/Cross-
          Appellants.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Bryner,  and Carpeneti, Justices.  [Matthews,
          Justice, not participating.]

          BRYNER, Justice.

I.   INTRODUCTION
          Two  vehicles  traveling in opposite  directions  at  a
curve  on  the Kenai Spur Highway hit a moose at nearly the  same
time; the impact killed the moose and left its carcass straddling
the  centerline.   Both  drivers left  the  scene.   Soon  after,
another  car rounded the curve, struck the carcass, and  ran  off
the  road, seriously injuring one of its occupants.  Section  321
of  the  Restatement (Second) of Torts recognizes that  a  person
whose  actions have created a hazard owes a duty of due  care  to
protect others from the danger.  The main question raised here is
whether each of the drivers who initially struck the moose owed a
duty  of due care on account of creating the hazard, even  though
only  one  of  them might have actually caused the mooses  death.
Because  the  language  of  section 321  and  the  public  policy
underlying that provision favor imposing the duty on both drivers
so  long  as  each  actively participated in  the  incident  that
created  the  hazard  and realized that a substantial  danger  to
others  resulted,  we  conclude  that  the  duty  should  not  be
restricted to the driver whose vehicle actually killed the moose.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          On  the morning of April 21, 2002, at about 4:30  a.m.,
Marvin  Dougherty  left  his  home  near  Nikiski  on  the  Kenai
Peninsula for his job at the Swanson River oilfield.  The jobsite
is about twenty-five miles off the Spur Highway and is accessible
only  by  a  rough  gravel road.  Dougherty, a pipe  welder,  was
driving  a  3/4  ton pickup owned by his employer, Peak  Oilfield
Service Co.  Dougherty planned to stop at the Fred Meyer store in
Soldotna  on his way to the jobsite to pick up several  Peak  co-
workers   a task he performed regularly as a condition  of  being
allowed to use Peaks truck.
          At  about 4:45 a.m. Dougherty was near milepost six  on
the  highway, driving toward Soldotna; conditions were  icy.   As
Dougherty  rounded an unlit curve, traveling about forty-five  to
fifty  miles  per hour, he hit a moose that had just been  struck
and  knocked  into  his lane by an oncoming  car.   Upon  impact,
Doughertys  pickup  pushed the moose   by  then  presumably  dead
about twenty-five feet down the road and toward the centerline of
the  highway.  Dougherty pulled over briefly to see if his pickup
had  any  road  flares or a tow strap but found  neither  in  the
truck.   Dougherty did not have a cell phone and did not  attempt
to  find a nearby phone to call the police.  He decided to  drive
on to the Soldotna Fred Meyer and to return to the accident scene
after  telling his co-workers that they would have to make  their
own   arrangements   for  getting  to  work.    Dougherty   later
acknowledged that he made a bad choice by continuing on  to  Fred
Meyer  and that he thought that the right thing to do . . . after
striking the moose would have been to go back there and put [his]
four-ways on and put some flares out, if [he] had some.
          The driver of the oncoming car who initially struck the
moose  also failed to stop, and was never identified.   In  later
proceedings  the parties referred to the unidentified  driver  as
John Doe.
          The moose strike was witnessed by David Poulin, another
Peak  employee, who happened to be driving behind Dougherty  when
his  truck  hit  the moose.  Poulin saw the unidentified  vehicle
approaching from the opposite direction and then noticed a  moose
dart into the road directly in front of it.  According to Poulin,
the  headlights of the unidentified vehicle kind of went  blurry.
Poulin  did not see the actual impact between the moose  and  the
oncoming  vehicle  but  recalled seeing  the  moose  flying  into
Doughertys  lane  in  a  most unnatural  position.   Poulin  also
recalled  seeing  Doughertys truck swerve, trying  to  avoid  the
moose.   At  the  same time, Poulin slammed on his  brakes.   His
vehicle  skidded toward the right, almost onto the  rumble-strip,
but  stayed  in  its lane.  By the time he came to  a  stop,  the
mooses  head  lay on the ground slightly in front of his  vehicle
and  just to the left.  Poulin then saw Doughertys truck continue
on toward Soldotna.
          About  fifteen  to twenty minutes after Dougherty  left
the  scene,  Shawn  Moore  and  his passenger,  Shannon  Parnell,
rounded the same curve on the Kenai Spur Highway; like Dougherty,
they were headed toward Soldotna.  Both had been drinking at  the
Rainbow Bar in Kenai, and Moore had offered Parnell a ride  home.
Moore  suddenly saw a white lump in his lane of travel.  A second
or  two later, he hit the moose.  His truck swerved to the  right
and  into  a  ditch,  where it flipped over,  crushing  the  cab.
Parnell  suffered  serious injuries, which  eventually  left  her
quadriplegic.  Moore, who was not seriously injured, then ran  to
a nearby business where a woman agreed to call 911.
          Meanwhile, after reaching Soldotna, Dougherty told  his
co-workers  that he needed to return to the accident  scene.   By
the  time  he  retraced his route and returned to  milepost  six,
Kenai  Police officers had arrived at the accident scene.   After
Dougherty  contacted them, the officers inspected his  truck  for
damage  and found moose flesh and debris hanging from the  trucks
undercarriage  but detected little or no damage above  the  front
bumper.
     B.   Proceedings
          Parnell  eventually  sued  Doughertys  employer,   Peak
Oilfield   Service  Co.,  and  other  related  business  entities
(collectively  Peak).   She  claimed  that  Dougherty  had   been
negligent in failing to remove the moose from the highway or warn
other  drivers of the hazard and that Peak was vicariously liable
for  Doughertys actions because Dougherty had been acting in  the
course of his employment at the time of the collision.
          Both parties moved for summary judgment on the issue of
Doughertys  alleged negligence; Parnell also  moved  for  partial
summary judgment declaring that Peak would be vicariously  liable
for   Doughertys  conduct  if  he  were  found  to   have   acted
negligently.  Peak conceded that if Dougherty created the  hazard
on  the highway, he would have been negligent in failing to  warn
other  drivers  or remove the hazard.  But Peak argued  that  the
unknown  driver who first struck the moose was solely responsible
for  creating the hazard because it was that vehicle that  killed
or  mortally  wounded  the  moose.   Peak  reasoned  that,  since
Dougherty had not created the hazard, he had no duty to remove it
from the highway or to warn other motorists of its presence.
          For her part, Parnell claimed that Dougherty was liable
on  a  theory  of negligence per se.  Alleging that the  evidence
unequivocally established that Dougherty was on the job  when  he
struck  the  moose, Parnell also claimed she was  entitled  to  a
judgment  that,  as  Doughertys employer,  Peak  was  vicariously
liable for his negligent conduct.
          Superior  Court Judge Charles T. Huguelet  denied  both
parties  motions for summary judgment on the issue of  Doughertys
duty.  Judge Huguelet ruled that if Dougherty created the hazard,
he  owed  a duty of due care to protect other motorists from  the
danger  as  a  matter  of  law, but that  the  issue  of  whether
Dougherty  actually created the hazard raised disputed  questions
of  fact  for the jury.  But the judge did grant Parnells  motion
for  partial  summary judgment on the issue  of  Peaks  vicarious
liability,  ruling as a matter of law that Dougherty  was  acting
within  the  course of his employment when his pickup struck  the
moose.
          After trial the jury returned a verdict in Peaks favor,
finding  that  Dougherty  had not been negligent.   The  superior
court  entered  final judgment in Peaks favor,  denying  Parnells
motions for directed verdict and for judgment notwithstanding the
verdict.
          Parnell appeals.  Peak cross-appeals.
III. DISCUSSION
     A.   Parnells Appeal

          1.   Failure  to instruct on Parnells theory that  both
               drivers participated in creating the hazard
          As  already mentioned, the superior court ruled  before
trial  that  if  Dougherty created a hazardous condition  on  the
highway, he owed a duty of due care to remove the hazard or  warn
other  motorists  of  the  danger but  also  ruled  that  whether
Dougherty  actually created the hazard raised disputed  questions
of  fact for the jury.  This ruling comports with section 321  of
the  Restatement (Second) of Torts, which states:  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.1
          On appeal, Parnell argues that the superior court erred
in  refusing  to instruct that Dougherty and the  driver  of  the
oncoming car  John Doe  both owed a duty of due care if they both
participated  in  creating the hazard.  Before  considering  this
argument or Peaks response, we must briefly describe its  factual
and procedural background.
          After  the superior court ruled that the issue of  duty
was  governed  by  a  standard similar to  the  one  set  out  in
Restatement Section 321, Parnell submitted a proposed instruction
seeking  to inform the jury that a duty of due care arises  if  a
driver, by his actions, or in combination with others, creates or
participates in the creation of a hazard in a roadway.  (Emphasis
added.)    The   court   declined  to  give   Parnells   proposed
instruction,  and  instead  simply  instructed  the   jury   that
Dougherty  owed  a  duty of due care if he created  a  hazard  or
hazardous condition on the highway.
          The  issue of joint participation in creating a  hazard
surfaced again after the jury began its deliberations.  The court
received  a note from the jury foreperson seeking to clarify  the
jury  instructions  defining negligence.  The  note  specifically
focused  on  the  last  paragraph of Instruction  No.  23.   That
          paragraph and the one immediately before it described the
elements of duty and breach that the jury needed to find in order
to  hold  Peak  liable for Parnells damages  or,  conversely,  to
absolve Peak of negligence:
               If  you find it is more likely true than
          not  true  that  Marvin Dougherty  created  a
          hazard  or hazardous condition on a  highway,
          then  Marvin  Dougherty had a  duty  to  take
          reasonable  actions to remove the  hazard  or
          warn  others  of its presence.  If  you  find
          that  Marvin  Dougherty created a  hazard  or
          hazardous  condition on a highway and  failed
          to  take  reasonable actions  to  remove  the
          hazard  or warn others of its presence,  then
          you must find that Peak was negligent.
               If,  on  the other hand, you  find  that
          Marvin  Dougherty did not create a  hazardous
          condition  on  a highway then you  must  find
          that Peak was not negligent.  OR, if you find
          that  Marvin  Dougherty created  a  hazardous
          condition  AND  took  reasonable  actions  to
          remove  the hazard or warn others,  then  you
          must find that Peak was not negligent.
          In  light of the jury note seeking to clarify the  last
of these two paragraphs,  Parnell renewed her earlier request for
a supplemental instruction to inform the jury that a hazard could
be  created  by  the combined actions of more  than  one  driver;
specifically, Parnell proposed to answer the jurys question  with
a supplemental instruction stating:
               A person creates a hazard on the roadway
          if they strike a moose and either directly or
          in  combination with another vehicle striking
          the  moose cause the moose to become a hazard
          in  the roadway, even if the striking of  the
          moose  [occurred]  due to  no  fault  of  the
          motorist.
          The  superior  court declined to give the  supplemental
instruction,  electing instead to respond to the  jurys  note  by
simply  referring  back  to  the original  instructions  defining
negligence and a hazard or hazardous condition on a highway.  The
courts response stated:  Marvin Dougherty had a duty to act  with
reasonable  care as defined in Instruction 21 if he  created  the
hazardous condition on the highway as defined in Instruction 25.
          Parnell now asserts that an instruction on the issue of
joint  creation  was crucial because undisputed  evidence  showed
that  Doughertys truck and the John Doe vehicle were involved  in
near  simultaneous  collisions with the moose.   Parnell  reasons
that,  although  these  circumstances make  it  clear  that  both
vehicles substantially contributed to the mooses presence on  the
highway, the precise extent of each vehicles contribution to  the
hazard   remained  unknowable,  thus  precluding  any  definitive
determination as to which vehicle actually killed or disabled the
moose.  Parnell takes the position that the jury reasonably could
have  found that both drivers participated in creating the hazard
and  that  both  owed a duty of due care toward other  motorists.
Parnell  faults  the  trial  court  for  declining  to  give  the
instruction  she  proposed  before  trial  and  the  supplemental
instruction  she  proposed in response to  the  jurys  post-trial
request  for clarification of Instruction 23.  She insists  that,
by  failing  to  clarify  the meaning of created  a  hazard,  the
instructions became highly misleading because they left the  jury
with  the false impression that it faced an all or nothing choice
as to which driver actually killed or mortally wounded the moose.
In  Parnells view, then, the courts failure to give her  proposed
supplemental instruction deprived her of the right to inform  the
jury of her theory of the case.
          Peak  responds that the court correctly instructed  the
jury  that Dougherty had a legal duty to remove the moose or warn
others  of  its  presence only if Parnell proved  that  Dougherty
created  the  hazard  himself  by actually  killing  or  mortally
wounding the moose.  In effect, then, Peak insists that the  jury
was  properly told that Dougherty owed no duty to protect Parnell
from  harm unless the jury found that he was the actual, or  but-
for, cause of the mooses presence on the highway.  In Peaks view,
a  joint  participation  instruction like  the  one  proposed  by
Parnell  would  unjustifiably expand  the  Restatements  duty  by
imposing  potential liability on any driver who happened  to  run
over  an  animal carcass, unless the driver stopped and proceeded
to remove the hazard or warn other motorists of its presence.
          Peaks  response to Parnells argument mistakenly  shifts
the  focus  of the inquiry to whether the moose had already  been
sufficiently  disabled  so  as to  be  an  existing  hazard  when
Dougherty struck it.  But what is at issue here is not who caused
the mooses carcass to be in the road, but rather who had the duty
to  warn  the public of the hazard thus created.  Generally,  the
law  of torts imposes no duty on a person to protect others  from
harm  by  a  third party.2  But as we have recognized in  earlier
cases,3  section 321 of the Restatement (Second) of Torts  carves
out an exception to this rule by imposing a duty of care when  an
actor  does  an act, and subsequently realizes or should  realize
that it has created an unreasonable risk of causing physical harm
to another.4
          The  controversy here turns on the precise  meaning  of
section  321s  language requiring that the actors act  must  have
created the ensuing danger.  Because the proper interpretation of
created  raises a question of duty, we must answer this  question
by  focusing  on the protective policies underlying section  321,
not  by  supporting  an analysis designed  to  decide  issues  of
proximate causation.5  On prior occasions we have emphasized that
duty  is  at  heart a question of policy centering on  the  basic
relationship  between the parties rather than on  the  nature  of
their  conduct  on a given occasion.  Particular conduct  becomes
important only when a duty is imposed[.]6
          Here  Peak  has  argued  that  section  321  should  be
construed  to  mean that the danger posed by the  moose  carcasss
presence  on  the  highway could have been created  only  by  the
driver  whose vehicle actually killed or disabled the moose.   In
our  view, Peaks attempt to equate the creation of a hazard  with
          what amounts to the requirement of but-for causation unduly
restricts the scope of the duty contemplated by section  321  and
undermines that provisions basic purpose.
          As   the  facts  of  this  case  illustrate,  hazardous
conditions can often reflect the actions of multiple actors.   In
such cases, however, the immediate circumstances surrounding  the
hazards  creation  will  frequently make  it  difficult  to  tell
exactly  which actor and actions primarily caused the new danger;
and  in  many such cases, definitive proof of actual  or  primary
causation might never be found.
          In  these  situations, a rule that hinges  the  hazard-
creating  actors  duty of due care on proof of but-for  causation
would  invite all involved actors to disclaim any duty until  the
question of causation could be resolved.  The purpose of the duty
established in section 321 is to encourage immediate  efforts  to
avoid  future  harm.   It  would make  little  sense,  and  would
frustrate the dutys purpose, to interpret section 321 as  hinging
the  imposition  of  the duty on causational determinations  that
commonly   require   careful  investigation  and   often   prompt
considerable debate.
          Nor  does the plain language of section 321 compel such
a  narrow  definition  of its phrase referring  to  an  act  that
creates  a  hazard.   The section describes two  key  ingredients
required to establish creation.  The first is affirmative  action
on the part of the actor: the duty can attach only when the actor
does  an  act.7  The second is the actors awareness  (objectively
measured)  of a substantial potential for resulting danger:   the
duty  can  attach only when the actor realizes or should  realize
that an unreasonable risk of causing physical harm to another has
resulted  from the act.8  As section 321s own text describes  its
creation  requirement, then, a hazard can be created by  multiple
actors when each actor actively participates in the circumstances
immediately surrounding the creation of a hazard and  each  actor
realizes  that these circumstances have resulted in  a  condition
that poses a substantial risk of physical harm to others.
          Peak advances no sound reason for limiting section 321s
duty  in cases involving multiple actors to the actor who can  be
proved  to  be  the but-for cause of the hazard.   Although  Peak
insists  that  Parnells joint-creation theory would  require  any
driver who hit a carcass to stop and remove it or warn others  of
its   presence,  Parnell  actually  advances,  and  the  evidence
supports,  a  much narrower theory.  At trial it  was  undisputed
that  Dougherty  and the John Doe driver both struck  the  moose,
which  at  some point in time came to rest in the middle  of  the
roadway,   and  the  evidence,  including  eyewitness  testimony,
indicated   that   the   two  drivers  hit   the   moose   almost
simultaneously.   Indeed,  the superior court  itself  recognized
that  the  evidence would have allowed the jury to  find  that  a
combination of the two cars . . . took out the moose.
          In  light of this evidence, the point at issue here  is
not whether a motorist who happens to see  or merely run over  an
already existing roadway hazard can be found to have created  the
hazard.   Rather,  Parnells theory of the case  presents  a  more
limited question: who bears the duty when two motorists both take
          substantial actions that combine to create the hazard?  In this
unique  situation,  as  we have noted, the crucial  policy  issue
becomes whether the protective duty imposed by section 321 should
fall  to  both  drivers based on their active  participation  and
actual awareness of resulting danger, or just to the driver  who,
in retrospect, might be determined to be the primary cause of the
hazards  existence.  In our view, the policies underlying section
321 weigh heavily in favor of imposing the duty on both drivers.
          In   arguing   for   a   narrower   interpretation   of
section  321, Peak relies on Udy v. Custer County,9 which  simply
recognizes the general principle that a motorist who passes by an
existing roadway hazard owes no duty.10  Udy is unremarkable, and
Peaks  reliance on it is misplaced.  In contrast,  Parnell  cites
two cases that offer substantial guidance on this question: Zylka
v.  Leikvoll11 and Montgomery v. National Convoy & Trucking Co.12
Like   Parnells   case,  both  Zylka  and  Montgomery   addressed
situations  involving traffic hazards arising from  the  combined
actions of two motorists; in each case, the court recognized that
the  defendants substantial participation in creating the  hazard
sufficed  to  trigger  a duty of due care even  though  the  same
hazard   arguably  might  have  existed  without  the  defendants
participation.13
          On   balance,  considering  the  record,  the   parties
arguments,  and  these  authorities, we conclude  that  when  the
combined  actions of two actors result in a hazardous  condition,
section  321  allows  each to be treated as  having  created  the
hazard  so  long as each actors conduct substantially contributed
to  the  resulting hazard and each actor realizes  the  resulting
danger of serious harm to others.
          We  also  conclude  that Parnell  was  entitled  to  an
instruction to clarify the scope of the disputed duty.   We  have
previously recognized that a plaintiff is generally entitled to a
jury  instruction consonant with the theory of her  case  if  the
evidence  supports  the  plaintiffs theory.14   We  have  further
recognized  that,  when  a  jury expresses  confusion  and  seeks
clarification  as to the applicable law, it is the  trial  courts
duty  to  guide the jury with a lucid statement of  the  relevant
legal criteria.15
          Here, Parnells primary theory of liability against Peak
was  her theory of joint creation: she claimed that John Doe  and
Dougherty both struck the moose within moments of each other  and
left its carcass on the highway, that Dougherty realized that the
carcass  exposed other motorists to a substantial risk  of  harm,
and  that these circumstances justified assigning a duty  of  due
care  to  Dougherty because he had participated in  creating  the
hazard.   In  keeping  with  this  theory,  Parnell  proposed  an
instruction  describing her claim as being that Marvin  Dougherty
struck a moose, thereby creating or participating in the creation
of  a  hazardous  situation.  Her instruction  also  proposed  to
inform the jury that under the law applicable to the case, a duty
of due care arises if a driver, by his actions, or in combination
with  others, creates or participates in the creation of a hazard
in a roadway.
          In our view, by emphasizing that a duty of due care can
          be owed by a driver who either creates a hazard individually or
participates  in  the  creation  with  another  driver,  Parnells
proposed  instruction  effectively  made  the  point  that   both
Dougherty  and  John  Doe  could be found  to  have  created  the
hazardous  condition,  even though the  same  hazard  might  have
existed if only one or the other had struck down the moose.
          The  trial  courts instructions did not otherwise  make
this  point.   In keeping with Peaks narrow view of section  321s
creation  requirement,  the instructions actually  given  by  the
trial  court appeared to offer the jury an either-or  choice:  on
the  one hand, Instruction 23 informed the jury of Parnells claim
that  Dougherty  had created the hazardous condition  and  stated
that  she  could  prevail against Peak only if  she  proved  that
Dougherty  created the hazardous roadway condition; on the  other
hand,  Instruction 24 told the jury of Peaks claim that John  Doe
had  created  the  hazard, directing the jury to  find  John  Doe
negligent if Peak proved this theory.
          The  jury  may  have understood these  instructions  to
imply  that only one actor could have legally created the hazard.
The   instructions  effectively  validated  Peaks  position  that
section  321s  creation  requirement hinged  on  a  finding  that
Dougherty was the but-for cause of the moose carcasss presence on
the  highway.  Peak maintained in its closing argument  that  the
jury could find that Dougherty created the hazard only if Parnell
proved  that  John Does vehicle had neither killed  nor  mortally
wounded  the  moose.  By contrast, although the instructions  did
not  completely prevent Parnell from arguing joint creation,  her
attorney  was constrained to confine this argument to the  narrow
theory  that  both  drivers might have hit and killed  the  moose
simultaneously   a theory that would have required  the  jury  to
find  that  both  drivers were the actual  cause  of  the  hazard
because they killed the moose at the same moment.
          Even  when  the  jury later requested clarification  of
Instruction  23s  final paragraph, which  barred  the  jury  from
finding Peak negligent unless it found that Dougherty had himself
created the hazard, the trial court declined Parnells request  to
inform the jury that Dougherty could have created a hazard either
directly  or  in combination with another vehicle.   Accordingly,
the  jury  was never adequately informed that Dougherty could  be
found  to  have created the hazard even if his own actions  might
not actually have killed or incapacitated the moose.
          In determining whether the jury was properly instructed
on  the  applicable  law, we review the trial courts  rulings  de
novo.16   An instruction that sets out an incorrect or incomplete
statement of the applicable law amounts to reversible error  only
if  it causes substantial prejudice to a party  that is, only  if
it  can be said that the verdict may have been different had  the
erroneous  instruction not been given.17 When evaluating  whether
there   has   been   prejudicial  error  with  regard   to   jury
instructions, the reviewing court must put itself in the position
of  the  jurors and determine whether the error probably affected
their judgment.18
          Applying these principles, we conclude that if the jury
instructions had made it clear that but-for causation  is  not  a
          strict prerequisite to imposing a duty under section 321, the
jury may have returned a different verdict.  Accordingly, we hold
that  the failure to instruct the jury on Parnells theory of  the
case  amounted  to  reversible  error;  at  a  minimum,  Parnells
proposed  supplemental  instruction should  have  been  given  in
response to the jurys specific request to clarify the meaning  of
Instruction 23.
          2.   Parnells Motions for Judgment as a Matter of Law
          Before  trial Parnell unsuccessfully moved for  summary
judgment  against Peak on the issue of liability, asserting  that
she  was  entitled to judgment as a matter of law on a theory  of
negligence  per se.  After the evidence closed at trial,  Parnell
unsuccessfully  moved  for  a  directed  verdict   and   judgment
notwithstanding   the   verdict   on   the   same   grounds   or,
alternatively, on the basis of the common law factors set out  in
D.S.W. v. Fairbanks North Star Borough School District.19  Parnell
now renews these arguments on appeal.20
               a.   Negligence per se for violating AS 28.35.080
          Parnell  builds her theory of negligence per se  around
AS 28.35.080(a), a hit-and-run provision that requires any driver
involved  in an accident that results in death, personal  injury,
or  total property damage to an apparent extent of $2000 or  more
to   notify  the  police  or  the  Department  of  Public  Safety
immediately by the quickest means of communication.   In  Ferrell
v.  Baxter,  we  ruled  that general traffic  laws  can  set  the
standard  of  a reasonable man and thereby require a  finding  of
negligence in a tort action if the plaintiff can prove  that  the
defendant  committed an unexcused violation.21  But we have  also
recognized  that negligence per se cannot apply in  a  particular
case unless the trial court first determines that the conduct  at
issue  lies  within  the ambit of the statute  or  regulation  in
question.22
          Here, the superior court ruled that Parnells negligence
per  se  claim failed to meet this standard, concluding that  the
requirements  of  AS 28.35.080 were not applicable  to  the  fact
situation  in  this  case.  The court cited two  cases  for  this
conclusion,  Wylie v. State and Drahosh v. State, both  of  which
describe the Alaska Motor Vehicle Codes hit-and-run provisions as
having  two  basic purposes: to prohibit hit-and-run  driving  in
order  to  prevent drivers from escaping liability and to  ensure
the availability of prompt assistance to motorists in distress.23
          Parnell  contends  that AS 28.35.080  was  intended  to
protect  the  motoring public [from] any hazards associated  with
the  accident.   But we agree with the superior  courts  decision
rejecting this view and conclude that the court correctly  relied
on  Wylie and Drahosh.  Although AS 28.35.080 may well enable the
police  to  protect the public against roadway  hazards  in  many
cases,  this appears to be a secondary benefit of the hit-and-run
statute.   If  the legislature had viewed roadway  hazards  as  a
matter  of  primary  concern, there would have  been  no  obvious
reason for it to use the apparent value of property damage as the
exclusive  measure  triggering the duty to report  a  hazard   an
imprecise measure that is bound to result in underreporting  when
low-damage  accidents  create obvious hazards  and  overreporting
          when high-damage accidents create no hazard.
          In  any event, even assuming that protecting the public
from  traffic  hazards  fell  within  the  core  purpose  of   AS
28.35.080,  the  evidence  in this  case  still  would  not  have
supported  Parnells  claim  of  negligence  per  se.   Subsection
.080(a)  requires  an accident involving property  damage  to  be
reported  only when there is total property damage to an apparent
extent  of  $2000  or  more.  Here, several  invoices  and  other
discovery  evidence included with the parties pre-trial pleadings
suggested that Peak made various repairs to Doughertys pickup and
that  the  total value of the work exceeded section .080s  $2,000
threshold.24  But these documents were largely unexplained, and at
least  some of the items they listed seem unrelated to Doughertys
collision  with the moose.  None of the documents were introduced
at  trial  to  establish  total property damage;  indeed  Parnell
appears to have made no effort to pursue the issue at trial.  And
undisputed evidence established that virtually all of the  damage
from  the collision occurred on the underside of Doughertys truck
an area where the damage was hardly apparent.
          Because AS 28.35.080 imposes a duty on drivers to  take
immediate  action  after an accident, the provisions  requirement
that  the  value of the damage be apparent can best be understood
as  referring to property damage that can be readily detected and
evaluated by motorists at an accident scene.  Here, even  viewing
the  record  in the light most favorable to Parnell,  we  see  no
reasonable basis for finding that damages to Peaks truck totaling
$2,000  or  more  should have been apparent to Dougherty  at  the
accident  scene.  Thus, the court correctly ruled that  liability
on a theory of negligence per se cannot stand.
               b.   Liability based on D.S.W. factors
          Parnell alternatively contends that the superior  court
erred in declining to find liability as a matter of law based  on
the  policy  factors  listed in D.S.W. v.  Fairbanks  North  Star
Borough  School  District.25   But  this  alternative  theory  is
unavailing.   The D.S.W. analysis serves to determine  whether  a
common law duty should be recognized where none otherwise exists.
For this reason, we have observed in other cases that an analysis
under  D.S.W.  becomes appropriate only [i]n the absence  of  any
other source of a duty of care (imposed, for example, by statute,
contract, or doctrine of law).26  Here, as we have already  seen,
the superior court properly determined that the issue of duty  in
this  case was governed by the legal rule set out in section  321
of  the  Restatement (Second) of Torts.  Accordingly,  this  case
provides  no  occasion to undertake an analysis under  D.S.W.  in
search of a new duty.
     B.   Peaks Cross-Appeal
          Peak  raises  a  contingent cross-appeal,  arguing  two
points  of error to be considered only if Parnells appeal is  not
affirmed.
          1.   Vicarious liability
          First,  Peak  challenges  the  superior  courts   order
granting  summary  judgment to Parnell  on  the  issue  of  Peaks
vicarious  liability for Doughertys actions. Peak  contends  that
this  ruling ignore[d] the overwhelming factual evidence  showing
          that Dougherty was not acting in the course and scope of his
employment  with Peak, as well as established case law  requiring
that  an  employees activities be designed to serve the employers
interests before liability can be imposed.  Peak emphasizes  that
Dougherty  was  not  employed  as a  crew  driver;  the  accident
occurred  before Doughertys normal shift began and at a  distance
of  several miles from the worksite; and Dougherty was  not  paid
for  this  travel time to and from the jobsite.   Citing  several
cases  holding  that  driving a company-owned  vehicle  does  not
necessarily  bring  an  employees conduct within  the  course  of
employment,27  Peak  insists that the  facts  clearly  show  that
Dougherty was using Peaks truck to further his own interests, not
Peaks.
          Parnell responds that the superior court properly  held
that  Peak  would be vicariously liable if Dougherty  were  found
negligent,  because the undisputed facts show that Dougherty  was
essentially  acting  as  a  bus driver in  furtherance  of  Peaks
interests.
          Under  the doctrine of respondeat superior, an employer
is liable for the negligent acts or omissions of an employee only
if  the  acts or omissions occur within the course and  scope  of
employment.28  For purposes of determining whether  a  particular
act  occurred  in  the  course and scope of  employment  we  have
customarily looked to the standards set out in sections  228  and
229 of the Restatement (Second) of Agency.29
            Section  228 describes the circumstances required  to
bring  conduct  within  the  scope of employment  as  well  those
establishing conduct fully outside that scope:
          (1)  Conduct of a servant is within the scope
          of employment if, but only if:
          
               (a)  it is of the kind he is employed to
               perform;
               
               (b)   it occurs substantially within the
               authorized time and space limits;
               
               (c)   it is actuated, at least in  part,
               by a purpose to serve the master, and
               
               (d)   if force is intentionally used  by
               the servant against another, the use  of
               force is not unexpectable by the master.
               
          (2)   Conduct of a servant is not within  the
          scope  of  employment if it is  different  in
          kind  from  that authorized, far  beyond  the
          authorized  time  or  space  limits,  or  too
          little  actuated by a purpose  to  serve  the
          master.[30]
          
          Section  229  elaborates on the circumstances  required
under   section  228  and  lists  several  factors  relevant   to
determining their presence.  This section provides that, [t]o  be
within  the scope of the employment, conduct must be of the  same
general  nature as that authorized, or incidental to the  conduct
          authorized.  It then explains that considerations relevant in
determining whether an act meets these standards include  whether
the act is one commonly done by such servants; whether the master
has  reason to expect that such an act will be done; whether  the
instrumentality by which the harm is done has been  furnished  by
the  master to the servant; and the extent of departure from  the
normal method of accomplishing an authorized result.31
          Comment d of section 229 specifically addresses driving
that occurs while an employee is going to and from work:
          If  the  master supplies the servant  with  a
          vehicle in order that the servant may  go  to
          or  from  work, it is important to  ascertain
          whether the vehicle is supplied primarily for
          the purpose of assisting the masters work  or
          for the purpose of assisting the employee  to
          perform  what is essentially his own  job  of
          getting  to or from work. The mere fact  that
          the  employer  supplies a  vehicle  does  not
          establish that those who avail themselves  of
          it  are within the scope of employment  while
          upon  it,  especially if the  use  is  merely
          casual.[32]
Illustration  13  of section 229 addresses this  comment  and  is
squarely on point with this case:
          P  employs men to do logging five miles  from
          the  nearest  habitation.   In  order  to  be
          certain   that  they  arrive   on   time,   P
          habitually  supplies and keeps  in  repair  a
          truck  which  his workmen, who  live  in  the
          nearest town, use in going to and from  work.
          It  is driven usually, but not invariably, by
          the  one  acknowledged to be the best driver.
          These  facts will support a verdict  that  in
          driving  to  and  from work,  the  driver  is
          within the scope of employment.[33]
          While  Peak  did  not pay Dougherty for  driving  other
employees  to  the Swanson River worksite, it is undisputed  that
the  company  allowed  Dougherty  to  have  the  truck  with  the
understanding that he would use it to commute to the jobsite with
his co-employees; it is further undisputed that Dougherty was  en
route to pick up other workers and drive them to the jobsite when
he  hit  the moose, and that Peak authorized Dougherty to perform
this  task  on a regular basis and derived a significant  benefit
from Doughertys willingness to do so.  By driving other employees
to  work  each  day, Dougherty helped to ensure that  they  would
reach  Peaks  remote jobsite on time, at the same  time  reducing
traffic  and  related impacts on the gravel road leading  to  the
jobsite.            As the superior court correctly recognized in
applying    the    Restatements   analysis,   these    undisputed
circumstances  establish  that, at  the  time  of  the  accident,
Dougherty  was acting in the course of his employment with  Peak.
Although Peak correctly points out that driving an employer-owned
vehicle  to  work  is not itself dispositive of  the  issue,  the
additional  facts here clearly support a finding  that  Dougherty
          was acting within the scope of employment.  We thus affirm the
superior courts order granting summary judgment to Parnell on the
issue of Peaks vicarious liability as Doughertys employer.
          2.   Peaks expert witness
          At  trial Peak moved for an order allowing its accident
reconstruction  expert, Michael DiTallo, to supplement  his  pre-
trial  report  with  and then to testify about   new  information
DiTallo had just gained from a recently identified witness.   The
trial  court  denied  Peaks  motion.  Peak  now  challenges  this
ruling,  arguing that Peak acted diligently in acquiring the  new
information;  that the evidence had significant value;  and  that
its  exclusion  resulted in unwarranted prejudice  to  Peak.   In
response,  Parnell  argues  that  the  court  properly   excluded
DiTallos  supplemental report and testimony because the  evidence
was   untimely   and  would  have  left  her  with   insufficient
opportunity  to  respond,  since  her  own  experts  had  already
testified and left town.
          We  find  it unnecessary to resolve this point  on  its
merits.   Parnells objections to this evidence and  the  superior
courts order declining to allow its admission both appear to have
been  based on concerns over potential prejudice that might arise
if the new information were admitted at the last minute.  Because
the  disputed evidence will not be cause for surprise  in  future
proceedings,  we see no reason to expect that the  same  concerns
would  prompt  the  superior court to  exclude  the  evidence  on
remand.   As  matters now stand, then, the controversy  over  the
evidences last-minute admission appears to be moot.34
IV.  CONCLUSION
          We  REVERSE the judgment against Parnell and REMAND for
a  new  trial  in accord with this opinion; we AFFIRM  the  order
granting  partial summary judgment to Parnell  on  the  issue  of
Peaks vicarious liability for Doughertys conduct.
_______________________________
     1    Restatement (Second) of Torts  321 (1965).

     2     See, e.g., Bryson v. Banner Health Sys., 89 P.3d  800,
804 (Alaska 2004);
Dore v. City of Fairbanks, 31 P.3d 788, 793 (Alaska 2001).

     3    See Bryson, 89 P.3d at 804 n.8 (noting that section 321
creates  an  exception to the usual rule that no duty  exists  to
protect others from harm by third persons).

     4    Restatement (Second) of Torts  321.

     5      See,  e.g.,  Bolieu  v.  Sisters  of  Providence   in
Washington,  953  P.2d 1233, 1241 (Alaska 1998) ([F]act-intensive
inquiries  pertain  to  the  issues  of  breach,  causation,  and
damages,  not  the  threshold legal question of  whether  a  duty
exists.).

     6     Mesiar v. Heckman, 964 P.2d 445, 448-49 (Alaska 1998);
see  also City of Kotzebue v. McLean, 702 P.2d 1309, 1313 (Alaska
1985)  (quoting William L. Prosser, The Law of Torts  53, at  325
(4th  ed.  1971),  for  the proposition  that  duty  is  only  an
expression  of  the sum total of those considerations  of  policy
which  lead  the  law  to  say that the particular  plaintiff  is
entitled  to protection); cf. W. Page Keeton et al., Prosser  and
Keeton  on  the Law of Torts  53, at 356 (5th ed.  1984)  (It  is
better  to  reserve duty for the problem of the relation  between
individuals  which  imposes upon one a legal obligation  for  the
benefit  of  the  other, and to deal with particular  conduct  in
terms  of  a  legal  standard of what is  required  to  meet  the
obligation.).

     7    Restatement (Second) of Torts  321.

     8    Id.

     9    Udy v. Custer County, 34 P.3d 1069 (Idaho 2001).

     10    Id.

     11    Zylka v. Leikvoll, 144 N.W.2d 358 (Minn. 1966).

     12    Montgomery v. Natl Convoy & Trucking Co., 195 S.E. 247
(S.C. 1938).

     13     See Zylka, 144 N.W.2d at 367; Montgomery, 195 S.E. at
253.

     14     Clary Ins. Agency v. Doyle, 620 P.2d 194, 201 (Alaska
1980)  (quoting Putensen v. Clay Adams, Inc., 91 Cal. Rptr.  319,
334 (Cal. App. 1970)).

     15    Chenega Corp. v. Exxon Corp., 991 P.2d 769, 776 (Alaska
1999);  Des Jardins v. State, 551 P.2d 181, 189-90 (Alaska  1976)
(quoting  Bollenbach  v.  United States,  326  U.S.  607,  612-13
(1946)).

     16     Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska
2002).

     17     Id. (quoting Barrett v. Era Aviation, Inc., 996  P.2d
101, 103 (Alaska 2000)).

     18     Id.  (quoting Cable v. Shefchik, 985  P.2d  474,  479
(Alaska 1999) (internal quotations omitted)).

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

     20       Because  the  superior  courts  post-trial  rulings
effectively superseded its original pre-trial rulings on Parnells
summary judgment motions, we review the courts post-trial rulings
rather  than  its rulings on summary judgment.  We  review  these
rulings  de novo using a standard similar to the one that applies
in   reviewing  summary  judgment  rulings,  asking  whether  the
evidence,  when viewed in the light most favorable  to  the  non-
moving party is such that reasonable persons could not differ  in
their  judgment as to the facts.  K & K Recycling, Inc. v. Alaska
Gold  Co.,  80 P.3d 702, 722 (Alaska 2003) (quoting  Ben  Lomond,
Inc.  v.  Schwartz,  915  P.2d  632,  635  (Alaska  1996));   cf.
Nielson  v. Benton, 903 P.2d 1049, 1052 (Alaska 1995); Bishop  v.
Municipality  of  Anchorage,  899 P.2d  149,  153  (Alaska  1995)
(describing  standard of review for summary  judgment).   Parnell
also  appeals  denial of her motion for directed verdict  on  the
ground that under the Restatement (Second) of Torts, section 321,
Peak  had  a duty to either remove the moose from the roadway  or
warn  others  of  the hazard and his failure to  do  so  entitled
Parnell  to a directed verdict.  But while we have addressed  the
legal  questions of the existence and extent of the duty in  this
case, the remaining questions of breach and causation are factual
issues reserved for the jury at the new trial after remand.

     21    Ferrell v. Baxter, 484 P.2d 250, 259 (Alaska 1971).

     22    Osborne v. Russell, 669 P.2d 550, 554 (Alaska 1983).

     23     See  Wylie  v. State, 797 P.2d 651, 657 (Alaska  App.
1990); Drahosh v. State, 442 P.2d 44, 48 (Alaska 1968).

     24     Parnell  bases her argument that the statutes  $2,000
threshold   was   met  on  the  following  evidence:   Doughertys
deposition testimony that the truck was pulling real hard to  the
right or to the left after the accident and that this forced  him
to  reduce his speed; an undated Peak supervisors incident report
estimating  the  direct cost of equipment damage  as  $3,800;  an
April  24,  2004, Peak purchase order for truck parts,  including
ball  joints,  serpentine belts, brake pads, and a speed  sensor;
and  deposition  testimony  by Peak employee  Duke  Minium  that,
shortly  after  the moose collision, the trucks  exhaust  sounded
noisy.   Parnell  also argues that the value of  the  dead  moose
should  be  included in the property damage total.  We find  this
argument meritless because, even though a moose arguably might be
characterized  as property having value, nothing  in  the  record
suggests  that  the value of a moose killed on the highway  could
ever be apparent to a motorist, as required under section .080.

     25    D.S.W., 628 P.2d at 555.

     26    Bolieu, 953 P.2d at 1235; see also Kallstrom v. United
States,  43  P.3d 162, 167 (Alaska 2002) (We apply  the  [D.S.W.]
factors  .  . . to determine whether an actionable duty  of  care
exists  when  the facts under consideration are  not  covered  by
statute, regulation, contract, or case law.).

     27     See,  e.g., Salmon v. Hinojosa, 538 S.W.2d 22,  23-24
(Tex.  Cir. App. 1976); see also Restatement (Second)  of  Agency
229 cmt. d (1958).

     28     Powell v. Tanner, 59 P.3d 246, 248 (Alaska 2002); see
also  Prosser and Keeton on the Law of Torts  70, at  501-03  (W.
Page Keeton et al. eds., 5th ed. 1984).

     29    Luth v. Rogers & Babler Constr. Co., 507 P.2d 761, 764-
65 n.14 (Alaska 1973).

     30    Restatement (Second) of Agency  228.

     31    Restatement (Second) of Agency  229.

     32    Id. cmt. d.

     33    Id. cmt. d, illus. 13.

     34     Because  parties and the superior court have  had  no
occasion   to   raise  or  consider  any  issue  concerning   the
admissibility of the new evidence besides the fact of  its  last-
minute  production,  our  disposition  finding  this  point  moot
implies  no  view  as  to  the  ultimate  admissibility  of  this
evidence.

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC