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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. (7/3/2008) sp-6282
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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