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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
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.
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