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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Edenshaw v. Safeway, Inc. (07/03/2008) sp-6282

Edenshaw v. Safeway, Inc. (07/03/2008) sp-6282, 186 P3d 568

     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
          
GERALD EDENSHAW, )
) Supreme Court No. S- 12583
Plaintiff,)
) U.S. District Court No.
v. ) 5:05-CV-0005 (RRB)
)
SAFEWAY, INC.; CARRS QUALITY) O P I N I O N
CENTER; and SAFEWAY FOOD &)
DRUG, ) No. 6282 - July 3, 2008
)
Defendants.)
)
          Certified  Question from  the  United  States
          District  Court for the District  of  Alaska,
          Ralph R. Beistline, Judge.

          Appearances:  Peter  R.  Ellis,   Ellis   Law
          Offices, Inc., Ketchikan, and Jack B.  McGee,
          Juneau,  for Plaintiff.  Paul M. Hoffman  and
          Amy  Gurton  Mead, Hoffman  Silver  Gilman  &
          Blasco, P.C., Juneau, for Defendants.

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

          CARPENETI, Justice.
                         
I.   INTRODUCTION
          We  accepted  certification in this case  to  determine
whether actual or constructive notice of a hazardous condition is
an  element of a prima facie case in an action against a  grocery
store owner in a slip-and-fall case.  We hold that it is not.

II.  FACTS AND PROCEEDINGS
          The  facts presented to us are sparse.  Gerald Edenshaw
slipped and fell at the Carrs store in Ketchikan on May 10, 2003.
He  brought a negligence action against Safeway, Inc. and  Carrs.
After  removal  to  federal  court,  Safeway  moved  for  summary
judgment,  alleging (1) that it had fulfilled any  duty  of  care
that  it  owed  because it had a regularized  method  of  finding
hazards,  and  (2)  that  it  had no  notice,  either  actual  or
constructive, that there was a hazard in the area where  Edenshaw
slipped  and  fell.   The United States District  Court  for  the
District  of Alaska denied summary judgment, deciding that  there
was  a  dispute  of  fact  whether Safeway  acted  reasonably  in
maintaining  its  premises.  Safeway moved  for  reconsideration,
citing  cases  from  several jurisdictions  in  which  negligence
actions  were  dismissed because the business had  no  actual  or
constructive  knowledge  of  the condition  causing  the  mishap.
After  the  federal  court  noted  that  Alaska  does  not   have
specialized rules to deal with premises liability, Safeway moved,
citing to Alaska Rule of Appellate Procedure 407,1 to certify the
question,  Is  actual  or  constructive  notice  that  an  unsafe
condition  exists an element of a prima facie case in  an  action
against a grocery store owner in slip and fall cases?
          We  agreed  to accept certification and now answer  the
question.
III. STANDARD OF REVIEW
          Appellate Rule 407(a) permits us to answer questions of
law  certified to us by federal courts.  Under that rule, we  may
answer  certified  questions  of law  if  there  are  before  the
certifying  court  questions of law of this state  which  may  be
determinative  of the cause then pending in the certifying  court
and  as to which it appears to the certifying court there  is  no
controlling  precedent in our decisions.2  A  certified  question
therefore necessarily involves determinative questions of  Alaska
law for which in the opinion of the certifying court there is  no
controlling precedent.  In deciding a certified question  of  law
we  must stand in the shoes of the certifying court, yet exercise
our  independent judgment.3  Therefore, we select the rule of law
that  is  most  persuasive  in light of  precedent,  reason,  and
policy.4
IV.  DISCUSSION
          In  Webb  v. City & Borough of Sitka, we abolished  the
common  law  distinctions  between  trespassers,  licensees,  and
invitees.5  We adopted a general rule of negligence, holding that
a  landowner  must act as a reasonable person in maintaining  his
property  in  a  reasonably safe condition in  view  of  all  the
circumstances, including the likelihood of injury to others,  the
seriousness  of  the  injury, and the burden  on  the  respective
parties  of  avoiding  the risk.6  We went  on  to  say  that  in
general,  issues  of  negligence are not susceptible  to  summary
determination and are better left to the trier of fact because of
the question of reasonableness.7
          Relying on our decisions in highway maintenance  cases,
Safeway  argues that actual or constructive notice of a hazardous
condition should be an element of a prima facie case in  a  slip-
and-fall  action.  In Johnson v. State, we examined the  elements
of a plaintiffs case in an action against the state for negligent
maintenance  of  a road.8  We held that when the  state  did  not
          create the hazardous condition, the plaintiff had to establish
either  actual or constructive notice of the condition.9  Safeway
urges us to extend this rule to cover grocery stores.  We decline
to do so.
          A  grocery  store is a more confined space and  a  more
intensely  managed environment than a highway.  As  other  courts
have noted, the owner of a grocery store can monitor the premises
and  take  steps to minimize risks to customers, particularly  in
areas that have frequent spills or other hazards.10
          We   adhere  to  the  general  rule  of  negligence  we
announced  in   Webb.  We hold that while actual or  constructive
notice  of  a hazardous condition is one factor that a factfinder
may  consider in determining reasonableness, it is not an element
of a prima facie case in a slip-and-fall action against a grocery
store  in  Alaska.  Rather than enter into a maze of legal  rules
and  exceptions about what may constitute actual or  constructive
notice  for  the  disposition of cases on  summary  judgment,  we
continue to trust that factfinders can best ascertain whether the
proprietor of a grocery store acted reasonably in maintaining the
stores premises considering all of the circumstances.  We see  no
reason  to tilt the contest between plaintiffs and defendants  at
the outset of a case.
          Both parties asked us to consider adopting the mode  of
operation rule, adopted in a number of jurisdictions.11  That rule
provides for liability if the plaintiff shows that the hazard was
reasonably foreseeable from the owners method of doing business.12
Courts that have adopted the mode of operation rule view it as an
exception to the requirement of actual or constructive notice13 or
as  a  type  of  constructive notice.14  But  because  actual  or
constructive notice is not an element of a prima facie case in  a
slip-and-fall  action, there is no need for a mode  of  operation
rule.  We therefore decline to adopt it.
          Proof that the grocery store owner knew or should  have
known  of the hazard would bolster a plaintiffs case and make  it
more  likely that the owner would be held liable in a given case,
but  notice  is only one factor of many that a factfinder  should
consider in evaluating the reasonableness of the actions  of  the
parties.   Safeway claimed at oral argument before  us  that  not
requiring actual or constructive notice as an element of a  prima
facie  case  effectively makes a store owner the insurer  of  his
property  or  puts the burden of proving notice or reasonableness
on  the store owner.  We disagree with these assertions.  We held
in  Webb  that  in adopting a general standard of negligence,  we
were not making a landowner the insurer of his property.15  As in
any  negligence  case,  the plaintiff still  has  the  burden  of
showing  that  the defendant owed him a duty, that the  defendant
breached  that duty, that he was injured, and that the breach  of
duty was the proximate cause of his injury.16  Evidence of notice
or  lack  thereof  may  be  relevant to the  question  whether  a
defendant breached a duty of care and therefore should go to  the
fact finder.17
V.   CONCLUSION
          We  HOLD  that  actual  or  constructive  notice  of  a
hazardous condition is not an element of a prima facie case in  a
          slip-and-fall action against a grocery store owner in Alaska.
_______________________________
     1    Rule 407(a) provides:

          The supreme court may answer questions of law
          certified to it by the Supreme Court  of  the
          United  States,  a court of  appeals  of  the
          United   States,  a  United  States  district
          court,  a  United States bankruptcy court  or
          United  States  bankruptcy  appellate  panel,
          when  requested  by the certifying  court  if
          there  are involved in any proceeding  before
          it  questions of law of this state which  may
          be determinative of the cause then pending in
          the  certifying  court and  as  to  which  it
          appears to the certifying court there  is  no
          controlling precedent in the decisions of the
          supreme court of this state.
          
     2    Alaska R. App. P. 407(a).

     3     Berg  v.  Popham,  113  P.3d 604,  607  (Alaska  2005)
(quoting FDIC v. Laidlaw Transit, Inc., 21 P.3d 344, 346  (Alaska
2001)).

     4     Kallstrom  v. United States, 43 P.3d 162, 165  (Alaska
2002)  (citing M.A. v. United States, 951 P.2d 851,  853  (Alaska
1998); Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).

     5     561 P.2d 731, 732-33 (Alaska 1977), superceded in part
by  statute,  AS 09.65.200, as recognized in Univ. of  Alaska  v.
Shanti,  835  P.2d  1225, 1228 n.5 (Alaska 1992)  (discussing  AS
09.45.795, which was subsequently renumbered AS 09.65.200).

     6    Id. at 733.

     7    Id. at 735.

     8    636 P.2d 47, 52-53 (Alaska 1981).

     9    Id. at 52.

     10     See Ortega v. Kmart Corp., 36 P.3d 11, 15 (Cal. 2001)
(noting   that   owner  exercises  reasonable  care   by   making
inspections); Forcier v. Grand Union Stores, Inc., 264 A.2d  796,
799  (Vt. 1970) (holding that open produce displays place greater
burden on store owner to remove debris from floor).

     11     See  Sheehan v. Roche Bros. Supermarkets,  Inc.,  863
N.E.2d  1276, 1282-83 (Mass. 2007) (discussing mode of  operation
rule and jurisdictions adopting it).

     12     See Jackson v. K-Mart Corp., 840 P.2d 463, 470  (Kan.
1992)  (plaintiff who slipped and fell in spilled soda  in  store
with  in-store cafeteria, and who showed that manner of operation
of store made spillage foreseeable, established store liability).

     13     Chiara v. Frys Food Stores of Ariz., Inc.,  733  P.2d
283, 285 (Ariz. 1987); Pimentel v. Roundup Co., 666 P.2d 888, 888-
89 (Wash. 1983).

     14    Rhoades v. K-Mart Corp., 863 P.2d 626, 631 (Wyo. 1993).

     15     Webb v. City and Borough of Sitka, 561 P.2d 731,  734
(Alaska 1977).

     16     Alvey v. Pioneer Oilfield Servs., Inc., 648 P.2d 599,
600  (Alaska 1982) (citing Larman v. Kodiak Elec. Assn, 514  P.2d
1275, 1279 (Alaska 1973)).

     17    See Wickwire v. Arctic Circle Air Servs., 722 P.2d 930,
931, 933 (Alaska 1986).

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