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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lindsey v E&E Automotive & Tire Service, Inc. (10/1/2010) sp-6514

Lindsey v E&E Automotive & Tire Service, Inc. (10/1/2010) sp-6514

        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 


TIMOTHY R. LINDSEY,                            ) 
                                               )       Supreme Court No. S-13609 
                        Appellant,             ) 
                                               )       Superior Court No. 3AN-07-05365 CI 
        v.                                     ) 
                                               )       O P I N I O N 
E&E AUTOMOTIVE & TIRE                          ) 
SERVICE, INC., and                             )       No. 6514 - October 1, 2010 
JAMES S. EGBERT,                               ) 
                        Appellees.             ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Peter A. Michalski, Judge. 

                Appearances:      Phillip Weidner and Michael Cohn, Weidner 
                & Associates, APC, Anchorage, for Appellant.  Timothy M. 
                Stone and Alex Vasauskas, Holmes, Weddle & Barcott, P.C., 
                Anchorage, for Appellees. 

                Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and 
                Stowers, Justices. 

                FABE, Justice. 


                In March 2005 Timothy Lindsey was severely injured when his employer's 

unattended truck rolled backwards and struck him. An inspection revealed that the cause 

of the accident was a non-functioning parking brake.  Lindsey sued E&E Automotive & 

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Tire Service Inc., the repair shop that had recently serviced the truck, for negligence. 

E&E had been asked to repair the parking brake but was unable to do so.  E&E informed 

Lindsey's employer that it had not repaired the parking brake and that the parking brake 

still   did   not   work.  The   superior   court   granted   summary   judgment   in   E&E's   favor, 

concluding that E&E had fulfilled its duty to warn Lindsey's employer that the requested 

repair had not been made and that a defect still existed with the parking brake.  Lindsey 


                In general, a mechanic who undertakes to inspect or repair a vehicle must 

exercise reasonable care and will be held liable for harm resulting from the failure to 

exercise such care. Three more specific duties to exercise reasonable care are implicated 

in this case: the duty (1) not to increase the risk of harm when repairing a vehicle; (2) not 

to cause another to rely on a vehicle having been rendered safe when it has not; and (3) 

to warn a vehicle owner of any dangerous unrepaired conditions of which the mechanic 

is   or   should   be   aware.  Because   E&E   fulfilled   these   duties   when,   after   making   no 

adjustments to the parking brake, it informed Lindsey's employer that it had not fixed the 

parking brake and that the parking brake still did not work, we affirm the superior court's 

grant of summary judgment in favor of E&E and its owner, James Egbert. 


        A.      Facts 

                Wesgro Paint & Drywall Supply, Inc. owned a 1996 Ford F-700 truck. Hal 

Docherty, the manager at Wesgro responsible for maintaining the company vehicles, had 

the truck towed to E&E Automotive on February 8, 2005 in a "no start" condition for 
repairs to its starting mechanism and brakes.1 

        1       Docherty did not specifically recall whether the truck was sent in for repairs 

to the front brakes, the parking brake, or both. 

                                                  -2-                                               6514 

----------------------- Page 3-----------------------

               Timothy Kramp, a mechanic at E&E, was responsible for repairing the 

truck.   Kramp did not have any experience working with large trucks and testified that 

his contact with the truck involved in this lawsuit was "probably the first time [he had] 

worked on a larger vehicle."      Kramp did not have knowledge about the parking brake 

system on the truck and stated that he was "completely unfamiliar with these parts."  He 

did not attempt to learn about the parking brake system or to acquire a service manual. 

E&E had worked on large trucks in the past, but the truck involved in this lawsuit was 

the largest truck that E&E had serviced while Kramp was employed there. 

               Kramp briefly examined the parking brake system and noticed that the 

hydraulic valve at the front of the truck that attached to the parking brake at the rear of 

the truck was visibly leaking fluid.  He attempted unsuccessfully to find a replacement 

hydraulic valve.   Because he could not locate a replacement valve, Kramp performed no 

further diagnostic work on the parking brake and told Docherty that the truck should be 

taken to a hydraulic shop to fabricate the part and complete repairs.  Kramp testified that 

replacing the hydraulic valve was the limit of E&E's capability with regard to repairing 

the truck's parking brake and that E&E generally did not have the capability to work on 

the rear of the truck where the parking brake was located.  While the truck was at E&E, 

Kramp and another mechanic performed repairs on other parts of the truck that were 

more similar to those found on small vehicles, including the front brakes and the lock 

cylinder on the steering column. 

               Kramp     maintains   that  prior  to  releasing  the  truck,  he  told  Wesgro 

employees that E&E did not repair the parking brake and that the parking brake did not 

work.   Kramp stated in an affidavit that he told Wesgro employees both over the phone 

and when the truck was picked up that the parking brake would not operate without 

repair and that the truck was not safe and should not be used until the parking brake was 

repaired.   And in a sworn statement provided to the Alaska Division of Occupational 

                                              -3-                                        6514

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Safety and Health several days after the accident, Docherty confirmed that "[t]he shop 

[E&E] told us that they could not repair the emergency brake and sent the truck back to 

us unrepaired."   At his deposition, Docherty had difficulty recalling who told him this, 

but he did not deny receiving this information before the accident.  He further stated in 

his sworn statement that "[e]veryone here [at Wesgro] knew that the emergency/parking 

brake did not work" after the return of the truck. 

                On     March    14,   2005,   Docherty     sent   Matt   Flasch    and   Justin  Dillon, 

employees at Wesgro, to pick up the truck from E&E.  The truck had been out of service 

for over a month and was needed for deliveries.              E&E charged Wesgro $2,516.58 (of 

which about $600 was for labor) for the repairs it performed on the front brakes, starter, 

and lock cylinder and provided a labor warranty for 90 days or 4,000 miles.  There was 

no charge associated with the parking brake, although the invoice noted: "needs . . . valve 

for parking brake, unable to locate parts - try hydraulics shop." 

                Flasch   and   Dillon   stated   in   affidavits   that   Docherty   was   told   by   an 

employee at E&E that the parking brake did not work before they were sent to pick up 

the truck.     Flasch also  stated that an employee at E&E told him that E&E had been 

unable to repair the parking brake and that the parking brake did not work when he 

picked up the truck, information he relayed to Docherty.  This recollection is consistent 

with the sworn statement Flasch signed days after the accident.                Another employee at 

Wesgro, Carl Odman, stated in his sworn statement that the employees at Wesgro "all 

knew that the emergency brake on the white truck was not working." 

                After   being   picked   up   from   E&E,   the   truck   was   put   back   into   service 
without a functioning parking brake.2          Two days later, on March 16, 2005, the parked 

        2       Although the president of Wesgro testified that there was a Wesgro policy 

to take vehicles out of service when their parking brake was not operational, this policy 

                                                   -4-                                               6514 

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truck rolled backwards at Wesgro's facility, striking Timothy Lindsey, pinning him 

against the front of another truck, and then rolling over him.             Lindsey sustained severe 

injuries from the accident, primarily to his right leg.  The driver of the truck had not used 

wheel chocks - wedges of sturdy material placed behind a vehicle's wheels to prevent 

movement - prior to the accident. 

                A month after the accident, Lindsey's attorney, together with his expert 

witness Carl Wilbur, conducted a non-destructive assessment of the truck at Wesgro's 

facility. The expert concluded that the parking brake was inoperable because "there were 

mechanical   adjustments   made   to   the  release   bolt/release   nut   on   the   parking   brake 

chamber      assembly,     causing    this  to  mechanically     'cage'    the  internal   spring"   that 

ordinarily applies the parking brake.   A complete "tear-down" was completed by D&D 

Heavy Equipment Repair and Service the following month.                     In a letter to the Alaska 

Division of Occupational Safety and Health, D&D reported that the parking brake failed 

because "the mechanical mechanism (2 release bolts on the emergency brake pods . . . ) 

had been manually overridden," consistent with Wilbur's findings. 

                The   parking   brake   mechanism   on   the   truck,   referred   to   by   D&D   as   a 

"backup type failsafe system," works as follows: a spring in the parking brake chamber 

exerts pressure on a brake wedge that fully applies the parking brake.  Unless the spring 

is compressed, the brake is applied and the vehicle cannot move.                 A hydraulic system 

activated from the cab of the truck exerts pressure to compress the spring and disengage 

the parking brake so that the truck can move.  When the hydraulic system is broken, the 

truck will not operate because the parking brake will remain fully applied.                   It is also 

possible to mechanically compress (or "cage") the spring by turning several bolts on the 

parking brake chamber, which will disengage the parking brake and render it inoperable. 

        2       (...continued) 

was apparently not communicated to or enforced by Docherty. 

                                                   -5-                                               6514 

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Doing so allows a mechanic to adjust and repair the parking brake when servicing the 

vehicle; it is not intended to permanently disable the parking brake so that the vehicle can 

operate with a broken hydraulic system. 

                Lindsey does not allege in his complaint that E&E caged the spring, a point 

his counsel confirmed at oral argument before the superior court.                  Nor is there any 

support     in  the  record    for  such   an  allegation.    Kramp      testified   that  he  had   no 

understanding of the parking brake system or the spring mechanism prior to this lawsuit 

and   that   he   did   not   even   inspect   the   parking   brake   system   at   the   rear   of   the   truck. 

Docherty had no idea when the spring was caged. 

        B.      Proceedings 

                In February 2007 Lindsey sued E&E, James Egbert (the president and 

owner of E&E at the time of the accident), Wesley Groves (the president of Wesgro), and 
others for negligence.3    E&E and Egbert filed a motion for summary judgment in October 

2007.4   Lindsey responded with a Rule 56(f) motion requesting a 120-day continuance 

to permit further discovery.  E&E and Egbert did not oppose a continuance of 60 days, 

and the parties subsequently stipulated to a number of additional extensions. Briefing 

resumed in April 2008, and the court heard oral argument in July. 

                The superior court issued an order in August 2008, granting E&E's motion 

in part and granting summary judgment in Egbert's favor, dismissing him from the 

lawsuit.    The court agreed with E&E's articulation of the applicable duty of care - to 

advise the owner that a repair has not been made or that a defect still exists unless the 

        3       Having      received   workers'     compensation      benefits   from    Wesgro,     his 

employer,   following   the   accident,   Lindsey   was   barred   from   suing   Wesgro   by   the 
exclusive     remedy     provision     of  the   Alaska    Workers'     Compensation       Act.    See 
AS 23.30.055. 

        4       The motion was titled a motion to dismiss but was in fact a motion for 

summary judgment made pursuant to Alaska Civil Rule 56. 

                                                  -6-                                            6514

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owner is otherwise aware of the defect - but believed there were disputed issues as to 

what information was relayed about the condition of the parking brake that precluded the 

entry of summary judgment.           It held that Egbert was entitled to summary judgment 

because   Lindsey   had   offered   no   evidence   that   Egbert   worked   on   the   truck   or   was 

otherwise personally involved in committing any alleged tort. 

                E&E moved for summary judgment again in January 2009 supported by 

several   additional   affidavits   by   Wesgro   employees.     The   superior   court   heard   oral 

argument in June 2009 and granted E&E's motion in July.                Applying the duty of care 

articulated in its previous opinion, the court found "no genuine issue of material fact as 

to whether E&E informed Wesgro that the truck was being returned to them with an 

unrepaired emergency brake."          Lindsey filed a motion to reconsider, which the court 

denied.     Lindsey appeals the superior court's grant of summary judgment in favor of 
E&E and Egbert.5 


                We review de novo a grant of summary judgment and will uphold summary 

judgment if the record presents no genuine issues of material fact and the moving party 
is entitled to judgment as a matter of law.6       The initial burden is on the moving party to 

prove, through admissible evidence, that there are no genuine factual disputes and that 

        5       In his amended statement of points on appeal, Lindsey also challenges the 

superior court's grant of attorney's fees.        Because Lindsey did not brief the point, we 
consider this challenge to be waived.  See, e.g., Danielle A. v. State, Dep't of Health & 
Soc. Servs., Office of Children's Servs., 215 P.3d 349, 356 n.46 (Alaska 2009) (citing 
 Washington Ins. Guar. Ass'n v. Ramsey, 922 P.2d 237, 247 n.29 (Alaska 1996)); In re 
Estate of Fields, 219 P.3d 995, 1013 (Alaska 2009) (citing Wasserman v. Bartholomew, 
38 P.3d 1162, 1171 (Alaska 2002)). 

        6       Progressive Cas. Ins. Co. v. Skin, 211 P.3d 1093, 1098 (Alaska 2009). 

                                                 -7-                                            6514

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it is entitled to judgment as a matter of law.7 The non-moving party is given the benefit 

of all reasonable inferences.8 


       A.     Liability Of E&E 

              To make out a prima facie case of negligence, Lindsey "needed to present 

evidence on each of the following elements: duty, breach of that duty, proximate cause 
and damages."9    "Whether a party has a duty of care and, if so, the nature and scope of 

that duty are questions of law . . . ."10 Whether a defendant breached its duty of care is 

typically a factual question for the jury that is not susceptible to resolution on a motion 
for summary judgment.11 

              Lindsey argues that E&E should be held liable for his injuries because the 

accident was caused by E&E's breach of its duty as a professional repairshop. According 

to Lindsey, E&E breached its duty by: (1) failing to inspect the parking brake system and 

locate the caged spring in the parking brake chamber after having possession of the truck 

for five weeks; (2) failing to adjust the release bolts so as to uncage the spring and 

disable the vehicle; (3) undertaking to repair the truck parking brake without adequate 

training and experience; (4) failing to reveal its lack of experience to Wesgro; and (5) 

       7      Egner v. Talbot's, Inc., 214 P.3d 272, 278 (Alaska 2009). 

       8      Progressive Cas. Ins. Co., 211 P.3d at 1098. 

       9      Wickwire v. Arctic Circle Air Servs., 722 P.2d 930, 932 (Alaska 1986). 

       10     Bryson v. Banner Health Sys., 89 P.3d 800, 803 n.4 (Alaska 2004). 

       11     See Swenson Trucking & Excavating, Inc. v. Truckweld Equip. Co., 604 

P.2d 1113, 1118-19 (Alaska 1980); Webb v. City & Borough of Sitka, 561 P.2d 731, 735 
(Alaska 1977). 

                                            -8-                                       6514

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failing to acquire knowledge by reviewing a service manual.12   E&E largely does not 

dispute the facts and instead maintains that they are insufficient as a matter of law to 

support a claim of negligence against E&E. 

                One who undertakes to inspect or repair a vehicle owes a duty to act with 

the    amount    of   care   that  a  reasonably     prudent    person    would    use   under    similar 
circumstances and will be liable for harm caused by its failure to exercise such care.13 

Three more specific theories of negligence are implicated in this case, two of which are 

set forth in Restatement (Second) of Torts  323: the breach of a mechanic's duty to 

exercise reasonable care can give rise to liability for harm "if (a) [the mechanic's] failure 

to exercise such care increases the risk of such harm, or (b) the harm is suffered because 
of the other's reliance upon the undertaking."14          A mechanic may also be held liable for 

        12      In   making   his   argument,   Lindsey   relies   on   the   affidavit   of   his   expert 

witness,   Carl   Wilbur,   who   opines   on   the   duty   of   care   of a   truck   mechanic   in   these 

        13      Swenson Trucking & Excavating, Inc., 604 P.2d at 1117-18; see also  14 

BLASHFIELD       AUTOMOBILE        LAW     AND   PRACTICE        476.32    (rev.  3d   ed.  2005)    ("A 
contract . . . for repairs with a garage keeper imposes upon him the duty to use ordinary 
care . . . to do the work required with ordinary skill and judgment."); 16 AM. JUR. 2D 
Proof of Facts 207,  1 (1978) ("The . . . relationship between the repairer of a motor 
vehicle and the person ordering the repairs requires that the repairer exercise ordinary 
skill and care in repairing the vehicle.").        The duty owed the owner of the vehicle by a 
mechanic is based on the parties' bailor-bailee relationship, while a duty owed to another 
plaintiff   depends   on   whether   the   defendant  would   have   foreseen   that   the   failure   to 
exercise ordinary care in making repairs would pose an unreasonable risk of injury to the 
plaintiff.  11 CAUSES OF ACTION 487,  3 (1986). 

        14      RESTATEMENT (SECOND) OF TORTS  323 (1965). 

                                                   -9-                                             6514

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harm caused by his failure to exercise reasonable care to warn a vehicle owner of any 
dangerous condition of which the mechanic is or should be aware.15 

                First, a mechanic will be liable where he negligently creates a dangerous 

condition or increases the danger.          In the context of brakes, for example, a mechanic 
would be liable for improperly installing a brake drum,16 improperly reinstalling a brake 

adjustor assembly,17 or incorrectly assembling the parts of a brake mechanism.18                   As 

discussed above, Lindsey does not allege and has presented no evidence that E&E caged 

the spring in the parking brake chamber or made any repairs or modifications to the 

parking brake system. 

                At oral argument before us, Lindsey also contended that E&E could have 

increased the risk of harm by rendering the truck operable after it was towed to E&E's 

facility in a "no start" condition.     But Lindsey failed to make this argument before the 
superior court or in his briefing on appeal.19         And even if Lindsey had preserved this 

argument,      the  problem    with   the  starting  mechanism      has   no  relation   to  the  non- 

functioning parking brake.        Thus, E&E's repair of the starting mechanism could not 

render it liable for all other defects in the truck on the theory that it increased the risk of 

harm. Here, it is uncertain when the parking brake became non-functional. Lindsey does 

not   allege   that   E&E's   actions   made   the   parking   brake   non-functional,   and   because 

        15      See RESTATEMENT (SECOND) OF TORTS  388 (1965). 

        16      See Morgan v. Mixon Motor Co., 137 N.E.2d 504 (Ill. App. 1956). 

        17      See Metrailer v. F & G Merch., Inc., 230 So. 2d 395 (La. App. 1969). 

        18      See Hansel v. Ford Motor Co., 473 P.2d 219 (Wash. 1970). 

        19      See Kellis v. Crites, 20 P.3d 1112, 1114-15 (Alaska 2001) (holding that 

argument not raised before superior court or in appellant's opening brief is waived). 

                                                 -10-                                           6514

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Lindsey does not allege that E&E itself created a dangerous condition or increased the 

risk of harm to Lindsey, E&E may not be held liable under this theory of negligence. 

                Second, a mechanic will be liable if the mechanic negligently returns a 

vehicle as repaired or inspected, giving the vehicle a "deceptive appearance of safety" 
on which the owner relies, when in fact the vehicle is not in a safe condition.20  Relying 

on this theory of negligence, we reversed a grant of summary judgment in Swenson 
Trucking & Excavating, Inc. v. Truckweld Equipment Co.21                 In that case, a company 

inspected a ram assembly and installed it on a truck but failed to discover a defective 
weld in the assembly.22      The company returned the truck to the owner as repaired and, 

about five weeks later, the assembly collapsed, destroying the truck.23  We held that the 

        20      RESTATEMENT (SECOND) OF TORTS  403 cmt. b (1965); see also Levine v. 

Sears   Roebuck   &   Co.,   200   F.   Supp.   2d   180,   187   (E.D.N.Y.   2002)   ("Underlying   a 
negligent repair claim is the concern that a repairer will hand over an unsafe product that 
appears fixed, but which is actually still in an unsafe condition."); Jewell v. Dell, 284 
S.W.2d 92, 96 (Ky. 1955) ("Actionable negligence of a repairman or serviceman from 
failure of the mechanism of a motor car upon which he has worked rests in part, at least, 
upon his assurance-more often implied than expressed-that the machine was safe for 
operation when in fact it was not."); Block v. Fitts, 274 So. 2d 811, 814 (La. App. 1973) 
("If [a repairman] represents to the owner that he has repaired the defect and that the car 
is safe to drive, and he allows the owner to take and operate the car under that erroneous 
impression, then we think the repairman's negligence in failing to properly repair the car, 
coupled with his failure to warn the owner, may be a proximate cause of an accident 
attributable to that defect."). 

        21      604 P.2d 1113 (Alaska 1980). 

        22      Id. at 1115. 

        23      Id. 

                                                 -11-                                           6514

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question   whether   the   repair   company   exercised   reasonable   care   in   inspecting   and 
installing the ram assembly was one of fact for the jury to decide.24 

                But   unlike   in  Swenson,   E&E   did   not   represent   to   Wesgro   that   it   had 

completed repairs on the parking brake and was returning the truck in a safe condition. 

To the contrary, it is undisputed that Kramp told multiple employees at Wesgro that he 
had not repaired the parking brake.25         In doing so, E&E fulfilled its duty to Wesgro to 

exercise reasonable care not to induce reliance on the safety of the unrepaired parking 

brake.   The rationale for holding a mechanic liable under this theory of negligence does 

not apply in this case - E&E did not give the truck a "deceptive appearance of safety." 

Because E&E made no explicit or implicit representation, on which Wesgro may have 

relied, that the parking brake was repaired, E&E may not be held liable under this theory 
of negligence as a matter of law.26 

        24      Id. at 1118-19. 

        25      When it denied E&E's first motion for summary judgment, the superior 

court found there to be "material facts in dispute . . . regarding what exact information 
was relayed about the condition of the brakes, and significantly whether Wesgro was 
reasonably   advised   or   otherwise   aware   that   the   parking   brake   was   unrepaired   and 
remained   defective."       The   superior   court   had   no   such   doubts   after   reviewing   the 
additional evidence submitted in connection with E&E's second motion for summary 
judgment, determining there to be "no genuine issue of material fact as to whether E&E 
informed      Wesgro     that  the  truck   was   being    returned   to  them    with   an  unrepaired 
emergency brake."  We agree. 

        26      See Levine v. Sears Roebuck & Co., 200 F. Supp. 2d 180, 189 (E.D.N.Y. 

2002) ("Because there is no evidence of any misrepresentation by the repairman, or that 
Mrs. Levine was deceived by an appearance of safety, plaintiff's negligent repair claim 
must be rejected as a matter of law."); Jewell v. Dell, 284 S.W.2d 92, 96 (Ky. 1955) 
(holding that mechanic was entitled to directed verdict where "the truck driver received 
no . . . assurance [of safety of brakes] but on the contrary was fully apprised of the fact 
that the brakes had been only adjusted or partially repaired, and he accepted the truck in 

                                                  -12-                                               6514 

----------------------- Page 13-----------------------

                 In   effect,   Lindsey   seeks   to   impose   an   absolute   obligation   on   E&E   to 

complete repairs on the parking brake or face liability: "The duty of a repairman is to 

repair.   If he is unqualified to undertake the repairs he should say so up front . . . ."  But 

he has provided no support for imposing such an obligation.  A mechanic might not be 

able to complete a repair for a number of reasons: lack of experience, lack of resources, 

lack of time, or because the owner of the vehicle decides against it.  As Kramp testified 

in this case, a mechanic may undertake to repair a vehicle only to find that the problem 

is beyond his capability.   It would not be appropriate, indeed it would be dangerous, to 

require a mechanic in such an instance to attempt to complete repairs to avoid liability. 

Rather,   a   mechanic   who   does   not   complete  a   vehicle   repair   fulfills   his   duty   not   to 

negligently induce reliance on the safety of the vehicle by clearly informing the vehicle 

owner that the vehicle was not repaired. 

                 Even   if   a   mechanic   makes   clear   to  the   vehicle   owner   that   the   vehicle 

remains unrepaired, the mechanic may still be held liable under the third specific theory 

of negligence implicated by this case: a mechanic returning an unrepaired vehicle is 

liable   for   harm   caused   by   the   use   of   the   vehicle   if   the   mechanic   fails   to   exercise 

reasonable care to warn the owner of any dangerous condition of which he knows or has 

reason to know unless he has reason to believe that the owner is aware of the dangerous 
condition.27    The liability of a supplier of a dangerous chattel finds some support in our 

        26       (...continued) 

that condition"). 

        27       RESTATEMENT (SECOND) OF TORTS  388 (1965); see also Levine, 200 F. 

Supp. 2d at 189 ("A repairer not only has a duty to use reasonable care to inspect for 
defects, but also to warn intended users of any potential dangers of which he knows or 
should know, and which are not obvious to the intended users." (internal quotation 
marks, punctuation, and emphasis omitted)); Hunt v. Ford Motor Co., 341 So. 2d 614, 
619-20 (La. App. 1977) (concluding that a supplier of a dangerous vehicle that has 

                                                   -13-                                                 6514 

----------------------- Page 14-----------------------

case law.     In  Wickwire v. Arctic Circle Air Services, for example, we assumed that a 

company that leased a plane from the owner could be liable for negligence for returning 

the   plane   in   a   defective   condition   if   the   company   knew   or   reasonably   should   have 
discovered the defect in the plane.28   But because the owner presented no evidence that 

the company should have known about the defect, or even that the defect was present 

when the company had possession of the plane, we affirmed the directed verdict in the 
company's favor.29 

                Lindsey   does   not   dispute   that   Kramp   told   Docherty   and   the   Wesgro 

employees who picked up the truck that the parking brake was not working. But Lindsey 

contends that the adequacy of this warning is a genuine issue of fact.  Although breach 

of a duty of care is typically a factual question for the jury, in this instance no reasonable 

juror could conclude that E&E failed to fulfill its duty to exercise reasonable care to warn 

Wesgro of the dangerous condition of the truck. 

                Lindsey first argues that the warning was inadequate because E&E did not 

inform Wesgro of the caged spring in the parking brake chamber.                    But there was no 

        27      (...continued) 

knowledge of defect is liable where it "failed to make reasonable efforts to ascertain 
exact nature of defect and to correct it, or to warn the purchaser of danger"); Delbrel v. 
Doenges Bros. Ford, Inc., 913 P.2d 1318, 1322 (Okla. 1996) ("[O]ne who is paid to 
repair a car owes a duty of care to both the owner of the car and to the general public to 
assure that the repair is properly performed or the owner is warned of its dangerous 
condition, where the dangerous condition is discoverable in the exercise of ordinary 
care."); Gall v. McDonald Indus., 926 P.2d 934, 939 (Wash. 1996) ("[T]he supplier [of 
dangerous chattel] may have a duty to inspect and repair the chattel so that a reasonable 
person would think it safe; to warn of the chattel's condition in such fashion that a 
reasonable person would expect the recipient to correct or avoid any unsafe condition; 
or to engage in some combination of these approaches."). 

        28      722 P.2d 930, 934 (Alaska 1986). 

        29      Id. at 934-35. 

                                                  -14-                                            6514

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evidence that E&E knew about the spring mechanism.                      In fact, it is undisputed that 

Kramp had no understanding of and did not inspect the parking brake system and thus 

did not discover the caged spring.            In this circumstance, it was adequate for E&E to 

inform Wesgro that the parking brake was not functioning without explaining the specific 


                 Lindsey next argues that the warning was inadequate because, according 

to Docherty, Kramp did not tell him that the truck was unsafe and should not be operated 

until   the   parking   brake   was   repaired.    As   the   president   of   Wesgro   acknowledged, 

Docherty should not have required the admonition of a repair shop to recognize that it 
is dangerous to operate a large commercial vehicle without a functioning parkingbrake.30 

Indeed,   it   was   the   policy   of  Wesgro   not   to   operate   its   trucks   without   a   functioning 

parking brake.   It was reasonable for Kramp to believe that by informing Docherty that 

the parking brake did not function, Docherty would realize the dangerous condition of 
the truck; no more explicit warning was necessary.31                Docherty's failure to follow his 

employer's   policy   and   take   the   truck   out  of   operation   does   not   render   the   warning 

        30       The president of E&E at the time of the accident similarly testified that 

"anybody in their right mind should know that [a truck without a functioning parking 
brake] was a dangerous vehicle." 

        31       See RESTATEMENT (SECOND) OF TORTS  388 (1965) (explaining that there 

is no liability where a supplier of chattel known to be dangerous "has . . . reason to 
believe   that   those   for   whose   use   the   chattel   is   supplied   will   realize   its   dangerous 

        32       See   id.     388   cmt.   g   ("[T]he   supplier   of  a   chattel   who   has   given   such 

information [as is necessary to make the use of the chattel safe] is entitled to assume that 
it will not be used for purposes for which the information given by him shows it to be 
unfit and, therefore, is relieved of liability for harm done by its misuse to those in the 

                                                   -15-                                                 6514 

----------------------- Page 16-----------------------

               Finally,   Lindsey   contended   at   oral  argument   that   E&E's   warning   was 

insufficient because it was not in writing on the invoice.        But Lindsey has offered no 

legal support for requiring a warning to be in writing in all cases, and the facts of this 

case do not demand such a requirement.  The purpose of a warning is to ensure that the 

vehicle will not cause harm to persons or property; this purpose was effectuated when 

Kramp provided a clear oral warning.  E&E's warning to Wesgro that the parking brake 

on the truck was not functioning fulfilled its duty of care as a matter of law and absolved 
it from liability under this theory of negligence.33 

               Because E&E informed Wesgro that it did not repair the parking brake and 

that the parking brake still did not function, E&E did not breach its duty as a mechanic 

as a matter of law and is entitled to summary judgment in its favor. 

        B.     Liability Of James Egbert 

               Lindsey also seeks to hold Egbert liable for his personal conduct as the 
owner of E&E.34     Lindsey argues that Egbert committed negligence by: (1) agreeing to 

undertake repairs of the truck when E&E did not have adequate training and experience; 

(2) assigning Kramp to work on the truck given his lack of qualifications; (3) failing to 

obtain a service manual; (4) failing to detect and remedy the caged spring in the parking 

        32     (...continued) 

vicinity of its probable use."). 

        33     See Jewell v. Dell, 284 S.W.2d 92 (Ky. 1955) (affirming directed verdict 

for mechanic where there was "uncontradicted evidence that the truck driver . . . [knew] 
that the brakes were not in good order"). 

        34     Lindsey does not seek to pierce the corporate veil and hold Egbert, the 

president and sole shareholder of E&E, liable for torts allegedly committed by Egbert's 
company.     He seeks to hold Egbert liable for Egbert's own alleged negligence.             See 
Casciola v. F.S. Air Serv., Inc., 120 P.3d 1059, 1063 n.11 (Alaska 2005) ("The corporate 
form does not shield corporate officers or employees who commit torts on behalf of their 
employer from personal liability."). 

                                              -16-                                          6514

----------------------- Page 17-----------------------

brake chamber and releasing the unrepaired truck to Wesgro; (5) failing to refer the truck 

to a qualified truck shop; and (6) failing to adequately train and supervise Kramp. 

                Egbert sought summary judgment, supported by his own affidavit, on the 

ground that he performed no work on the truck while it was at E&E, did not supervise 

the work on the truck, and did not participate in the return of the truck to E&E.               At his 

deposition, Egbert testified that he authorized the truck to be released to Wesgro knowing 
that   the   emergency   brake   was   not  functioning.35      In   addition,   Egbert   picked   up   a 

replacement hydraulic valve for the truck and delivered it to the garage, although it was 

not the right fit and was not used.       Egbert did not give his mechanics any instructions 

concerning their work on the parking brake or any other part of the truck, and he did not 

perform any work on the truck himself. 

                Lindsey's negligence claim against Egbert largely mirrors his claim against 

E&E, but he presents little evidence of Egbert's personal involvement for which Egbert 

might be held liable.     Lindsey fails to rebut Egbert's statements in his affidavit that he 

did not personally perform any work on the truck and that he did not direct how work on 

the truck was to be performed.  The extent of Egbert's personal involvement appears to 

be picking up an incorrect replacement part and instructing an employee that Wesgro was 

entitled to have their truck back when they asked for it.  It is questionable whether based 

        35      According to Egbert, an Alaskan mechanic cannot by law refuse to release 

a vehicle to an owner on the grounds that it is dangerous.             We need not examine that 
issue to resolve this appeal. 

                                                 -17-                                              6514 

----------------------- Page 18-----------------------

on this conduct, Egbert owed a personal duty of care to Wesgro or Lindsey.36  But even 

if he did, that duty was not breached for the reasons discussed above.37 


                For the foregoing reasons, we AFFIRM the superior court's ruling granting 

summary judgment in E&E and Egbert's favor. 

        36      See D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628 P.2d 554, 555 

(Alaska 1981) (listing factors to be considered in determining whether an actionable duty 
of care existed, including "the closeness of the connection between the defendant's 
conduct   and   the   injury   suffered   [and]   the   moral   blame   attached   to   the   defendant's 

        37      Some of the alleged grounds for Lindsey's negligence claim against Egbert 

are distinct from the grounds for his claim against E&E: Egbert's assignment of Kramp 
to work on the truck and his negligent supervision and training of Kramp.  But Lindsey 
fails to present evidence to support these allegations.  There is no evidence in the record 
that Egbert personally assigned Kramp to work on the truck.                 Nor is there evidence 
concerning what training and supervision Egbert provided to Kramp or how such training 
and supervision was negligent. Perhaps more importantly, Lindsey's claims of negligent 
assignment, supervision, and training are all dependent on Kramp's negligence. Because 
we conclude that there is no evidentiary support for the claim that Kramp breached his 
duty of care, Egbert's alleged conduct cannot support a claim of negligence either. 

                                                 -18-                                             6514 
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