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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Estate of Shawn Martin Mickelsen v. North-Wend Foods, Inc. (4/27/2012) sp-6670

Estate of Shawn Martin Mickelsen v. North-Wend Foods, Inc. (4/27/2012) sp-6670

        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, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



ESTATE OF SHAWN MARTIN                          ) 

MICKELSEN By Its Administrator,                 )       Supreme Court No. S-13482 

Yong Ae Mickelsen,                              ) 

                                                )       Superior Court No. 3AN-08-06768 CI 

                        Appellant,              ) 

                                                )       O P I N I O N 

        v.                                      ) 

                                                )       No. 6670 - April 27, 2012 

NORTH-WEND FOODS, INC. and                      )
 

S & S PROPERTIES, LLC,                          )
 

                                                )
 

                        Appellees.              )
 

                                                )
 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Peter A. Michalski, Judge. 



                Appearances:  Mark Choate, Juneau, for Appellant.  Laura L. 

                Farley, Farley & Graves, P.C., Anchorage, for Appellees. 



                Before:      Carpeneti,     Chief    Justice,   Fabe,   Winfree,     and 

                Stowers,    Justices. [Christen, Justice, not participating.] 



                CARPENETI, Chief Justice. 

                STOWERS, Justice, dissenting. 



I.       INTRODUCTION 



                An    eastbound     driver   attempted     to  make    an   illegal  left  turn  into   a 



restaurant's exit driveway.  The eastbound driver collided with an oncoming westbound 



driver,   killing   the   westbound  driver.    The   decedent's   estate   sued   the   restaurant   for 



wrongful   death,   arguing   that   the   restaurant   was   negligent   in   creating   a   dangerous 


----------------------- Page 2-----------------------

condition on its land and failing to take steps to make the condition safe, for example, by 



warning eastbound drivers not to use the exit driveway in this manner.              The superior 



court dismissed the complaint, holding that the restaurant had no duty to guard against 



risks created by the conduct of third parties. Because the complaint, read liberally, stated 



a cause of action, we reverse the decision of the superior court and remand for further 



proceedings consistent with this opinion. 



II.     FACTS AND PROCEEDINGS 

        A.     Facts1 



               Wendy's Old Fashioned Hamburger Restaurant sits on the northwest corner 



of East Fifth Avenue and Reeve Boulevard in Anchorage.               The building and land are 



owned by S & S Properties, LLC and the restaurant is operated by lessee North-Wend 



Foods, Inc.     There is only one legal entrance for customers in vehicles to access the 



restaurant; that entrance is located on Reeve Boulevard.          There are two legal exits for 



vehicles leaving Wendy's; vehicles can exit either via the same curb-cut as the Reeve 



Boulevard entrance, or via a curb-cut on East Fifth Avenue.  The East Fifth Avenue exit 



was not intended or designed as an access point for vehicles entering Wendy's from East 



Fifth   Avenue.    Instead,    it  is  used  by  vehicles  exiting  Wendy's     after  visiting  the 



drive-through window. 



        1      These     facts  are  taken   mainly    from   Mickelsen's     complaint.    Factual 



allegations in a plaintiff's complaint are assumed to be true for purposes of resolving a 

motion to dismiss under Alaska Civil Rule 12(b)(6).            See J & L Diversified Enter. v. 

Municipality of Anchorage , 736 P.2d 349, 351 (Alaska 1987). Some facts are also taken 

from our observations of photographs of the collision site Mickelsen provided to the 

superior court at oral argument on the dismissal motion. None of these latter facts is 

inconsistent with any of the allegations of the complaint. Accordingly, we consider them 

pursuant to the obligation of a court, in passing on the sufficiency of a complaint, to draw 

all reasonable inferences in favor of the complainant. See infra note 3 and accompanying 

text. 



                                                -2-                                           6670
 


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                Generally, a person driving eastbound on East Fifth Avenue who wants to 



enter Wendy's must do so by first turning left onto Reeve Boulevard and then using the 



Reeve Boulevard entrance.   However, an eastbound driver on East Fifth Avenue could 



also choose to take a "short-cut" and enter Wendy's via the East Fifth Avenue curb-cut 



by making an illegal left turn, crossing         the double-yellow line, and crossing two lanes 



of   westbound   traffic.   This   short-cut   would   give   the   driver   wrong-way   access   to   a 



one-way driveway that circles around the building to the Wendy's parking lot.  Because 



the width of the curb-cut accommodates only one vehicle at a time, drivers must often 



roll   one   tire   over   the   raised   curb   in   completing   the   short-cut   maneuver. Wendy's 



customers use this short-cut on a regular basis, something which can be readily observed 



from inside the restaurant. 



                On March 27, 2006, Lawrence W. Hayward was driving a pick-up truck 



eastbound   on   East   Fifth   Avenue   when      he  attempted   to   use   the   short-cut   to   enter 



Wendy's.       As    Hayward     was    crossing   the  westbound      traffic  lanes,  a  westbound 



motorcycle driven by Shawn Mickelsen collided with the pick-up truck. Mickelsen died 



as a result of the injuries he received in the collision. 



        B.      Proceedings 



                In March 2008 Mickelsen's estate ("Mickelsen") brought a wrongful death 



action against landowner S & S Properties and lessee North-Wend Foods (collectively 



"Wendy's").       Mickelsen's complaint asserted that "[t]he use of the 5th Avenue exit as 



a short-cut entry to the Wendy's Restaurant is a structure or artificial condition that 



posed an unreasonable risk of harm to west-bound traffic on 5th Avenue," that Wendy's 



knew or should have known of this dangerous condition, and that Wendy's "failure to 



take action to make this dangerous condition safe" was a breach of its duty of care and 



a substantial factor in Mickelsen's death. 



                                                  -3-                                            6670
 


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                Wendy's moved to dismiss the complaint under Alaska Civil Rule 12(b)(6) 



for failure to state a claim upon which relief could be granted.           Wendy's argued that it 



had "no legal duty . . . to control the actions of third parties or to prevent car accidents 



or improper driving."       Mickelsen opposed the motion, arguing that "[a]s possessors of 



land on which a business is operated adjacent to a busy thoroughfare . . . [Wendy's] had 



a duty of care not to let conditions on their property create an unreasonable risk of harm 



to passing motorists."  Mickelsen also asserted that from East Fifth Avenue, "there is no 



visible indication that [the East Fifth Avenue curb-cut] is meant as an exit only, and [it] 



can easily be misconstrued as an entrance."            In   its   reply to Mickelsen's opposition, 



Wendy's asserted that "nothing on [its] property caused or contributed to the accident" 



and that Mickelsen had not identified "any condition controlled by [Wendy's] that was 



unsafe." 



                Superior   Court   Judge   Peter   A.   Michalski   heard   oral   argument   on   the 



motion. At various points in the argument, Mickelsen identified the dangerous condition 



which gave rise to Wendy's        duty of care as the "exit that is used as an entry," "the use 



of that exit as an ingress point," and the exit which "attracts drivers" to use it as an entry. 



Mickelsen also asserted that the curb-cut was dangerous because of "poor design" and 



that Wendy's could remedy the problem by either closing the exit or affixing a "No 



Entry" sign.     Mickelsen argued that Wendy's owed a duty of care to all westbound 



drivers "[n]ot to create a condition which would cause vehicles to pull across their path 



into" the property. 



                Following   oral   argument,   Judge   Michalski   granted   Wendy's   motion   to 



dismiss the complaint under Civil Rule 12(b)(6) because "the complaint only alleges 



wrongful acts by third parties and conditions created by third parties," and not wrongful 



acts or conditions created by Wendy's.         The court explained: 



                                                 -4-                                           6670
 


----------------------- Page 5-----------------------

                        As a general rule, landowners have a duty to use due 

                care to guard against unreasonable risks created by dangerous 

                conditions      existing    on   their  property.      The    condition, 

                however, "does not include the conduct of third parties." 



                        Mickelsen's complaint alleges[:]          "The use of the 5th 

                Avenue exit as a short-cut entry to the Wendy's Restaurant 

                is    a   structure    or   artificial   condition     that   posed    an 

                unreasonable       risk  of  harm    to  west-bound     traffic   on  5th 

                Avenue."      The complaint does not allege that the design of 

                the entrance and exits in themselves are dangerous or that 

                defendants   failed   to   properly   designate   the   entrances   and 

                exits to the property.[2] 



Following its grant of Wendy's motion to dismiss, the superior court entered a final 



judgment in favor of Wendy's.          Mickelsen appeals. 



III.    STANDARD OF REVIEW 



                In considering an appeal from a dismissal under Civil Rule 12(b)(6), we 



apply de novo review, presuming all factual allegations of the complaint to be true and 



making all reasonable inferences in favor of the   non-moving party.3                   "To survive a 



motion   for   dismissal   under   Rule   12(b)(6),   it   is   enough   that   the   complaint   set   forth 



allegations of fact consistent with and appropriate to some enforceable cause of action."4 



We will affirm dismissal only if the plaintiff can prove no set of facts in support of his 



claim which would entitle him to relief.5 



        2       The formatting of the original quotation has been altered and citations have 



been omitted. 



        3       J & S Servs., Inc. v. Tomter , 139 P.3d 544, 547 (Alaska 2006). 



        4       Id. (internal quotation marks omitted).
 



        5       Id.
 



                                                   -5-                                             6670
 


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              The existence and extent of a duty of care are questions of law which we 



decide de novo, using our independent judgment to adopt the rule of law that is most 



persuasive in light of precedent, reason, and policy.6 



IV.	   DISCUSSION 



              Mickelsen first argues that the superior court erred by incorrectly applying 



the law pertaining to motions to dismiss under Rule 12(b)(6).      He then argues that the 



superior court erred as a matter of law in concluding that Wendy's owed no duty to 



Mickelsen, and that therefore the dismissal of his complaint was improper.  We address 



these arguments in turn. 



       A.	    The    Superior    Court's   Reading    Of  The   Complaint    Was    Unduly 

              Narrow. 



              Mickelsen argues that the superior court incorrectly applied the law for 



testing the sufficiency of his complaint under Rule 12(b)(6).  Specifically, he argues that 



the superior court erred because it did not presume the truth of the allegations in his 



complaint, it ignored some of his factual assertions, it did not make reasonable inferences 



in his favor, and it "focuse[d] on a narrow interpretation" of the facts Mickelsen pled in 



support of Wendy's duty of care. 



              As noted above, a court testing the sufficiency of a complaint under Rule 



12(b)(6) must presume all allegations in the complaint to be true and must draw all 

reasonable inferences in favor of the complainant.7  Because complaints must be liberally 



       6      State v. Sandsness, 72 P.3d 299, 301 (Alaska 2003); N. Kenai Peninsula 



Rd. Maint. Serv. Area v. Kenai Peninsula Borough , 850 P.2d 636, 639 (Alaska 1993) 

("On questions of law . . . [our] duty is to adopt the rule of law that is most persuasive 

in light of precedent, reason, and policy."). 



       7      See supra note 3 and accompanying text. 



                                            -6-	                                      6670
 


----------------------- Page 7-----------------------

construed, motions to dismiss under Rule 12(b)(6) are disfavored and should rarely be 

granted.8   To survive, 



                [a] complaint need only allege a set of facts "consistent with 

                and     appropriate    to  some     enforceable     cause   of   action." 

                Therefore, a complaint should not be dismissed for failure to 

                state a claim unless it appears beyond doubt that the plaintiff 

                can prove no set of facts in support of the claims that would 

                entitle the plaintiff to relief.[9] 



                Here, citing Schumacher v. City & Borough of Yakutat10  for the rule that 



landowners have no duty to protect others from risks created by the conduct of third 

parties,11   the   superior   court   concluded   that   Mickelsen   had   not   stated   a   valid   claim 



because his complaint "only alleges wrongful acts by third parties and conditions created 



by third parties, not the defendants," and "does not allege that the design of the entrance 



and exits in themselves are dangerous or that defendants failed to properly designate the 



entrances and exits to the property."   We agree with Mickelsen that the superior court's 



reading of the complaint was unduly narrow. 



                Mickelsen's complaint contains the following allegations: 



                8.      There is one legal entry for customers in vehicles to 

                access Wendy's.       That entry is from Reeve Boulevard. 



                 10.    There are two legal exits for vehicles from Wendy's. 

                The first and main exit is out the same curb cut as the Reeve 

                Boulevard      entry.   The   second   allows   vehicles,   primarily 

                using the drive-through, to exit onto 5th Avenue. 



        8       Angnabooguk v. State, Dep't of Natural Res., Div. of Forestry , 26 P.3d 447, 



451 (Alaska 2001). 



        9       Id. (emphasis added and citation omitted). 



        10      946 P.2d 1255 (Alaska 1997). 



        11      Id. at 1258. 



                                                   -7-                                             6670
 


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11.     Wendy's customers who are eastbound on 5th Avenue 

must wait for a left turn arrow or traffic to clear to turn onto 

Reeve Boulevard to use the Reeve entry. 



12.     Wendy's customers in the 5th Avenue turning lane can 

take   a   "short-cut"   into   the   property   from   5th   Avenue   by 

crossing the double yellow line, crossing the two west bound 

traffic lanes, entering the drive-through exit and then circling 

around the east side of the building. 



13.     Wendy's   customers   use   this   short-cut   to   get   to   the 

restaurant on a regular basis. 



14.     Customers using this short-cut into the 5th Avenue exit 

are   readily    observable     from   the  inside   of   the  Wendy's 

Restaurant by managers, employees and customers. 



16.     On March 27, 2006, Lawrence W. Hayward, attempted 

to use this short-cut to enter the one-way 5th Avenue exit in 

order to buy lunch at Wendy's. 



19.     While crossing the west-bound lanes of 5th Avenue to 

enter in through the drive-through exit, Hayward's truck was 

struck by a motorcycle.  The driver of the motorcycle, Shawn 

Martin Mickelsen, died as a result of the injuries he received. 



. . . . 



23.     The use of the 5th Avenue exit as a short-cut entry to 

the Wendy's Restaurant is a structure or artificial condition 

that posed an unreasonable risk of harm to west-bound traffic 

on 5th Avenue. 



24.     The defendants knew or should   have known of this 

dangerous condition because such use occurs on a daily basis. 



25.     The defendants knew or should have known of this 

dangerous condition because it is readily observable from the 

restaurant by looking out the south facing windows onto 5th 

Avenue. 



26.     Defendants[']       failure  to  take   action   to  make     this 

dangerous condition safe was a breach of their duty of care. 



                                   -8-                                             6670
 


----------------------- Page 9-----------------------

               27.    Defendants['] conduct in creating   and allowing this 

               dangerous condition to exist evidenced "reckless indifference 

               to the interest of another person" warranting the award of 

               punitive damages pursuant to Alaska Stat.  09.17.020. 

               Reading     Michelsen's    complaint    liberally,  as  we  must,12  Mickelsen's 



complaint alleges that Wendy's created an entry and exit system that had the effect of 



enticing Wendy's patrons to enter the premises by making an illegal turn across two 



lanes of traffic, that Wendy's customers in fact regularly used the short-cut, that Wendy's 



was or should have been aware of such use, and that this dangerous condition led to the 



fatal accident.  "In order to establish a cause of action for negligence, a plaintiff must 



show a duty of care owed to him by the defendant, a breach of that duty, and that damage 



was proximately caused by the breach."13       Mickelsen's allegations are sufficient to state 



a negligence cause of action.  The facts pled by Mickelsen invoke a landowner's duty of 



care, as we conclude in greater detail in the following section.       Mickelsen's complaint 



adequately   alleges   that   Wendy's   breached    that   duty  by   creating  and  allowing  the 



continued existence of a dangerous condition, and that Wendy's breach proximately 



caused the damages at issue in this case.         This is sufficient to overcome a motion to 



dismiss for failure to state a claim for relief. 



        B.     Wendy's Owed A Duty Of Care To Mickelsen. 



               As noted above, before a defendant can be held liable for negligence, it 



        12     Angnabooguk , 26 P.3d at 451. 



        13     Shooshanian v. Wagner, 672 P.2d 455, 464 (Alaska 1983) (citing Leigh v. 



Lundquist , 540 P.2d 492, 494 (Alaska 1975); Larman v. Kodiak Electric Ass'n , 514 P.2d 

1275, 1279 (Alaska 1973)). 



                                               -9-                                           6670 


----------------------- Page 10-----------------------

must be established that the defendant owed a duty of care to the plaintiff.14          Here, the 



superior court granted Wendy's Rule 12(b)(6) motion because it concluded, based on the 



allegations in the complaint, that Mickelsen had not pled facts sufficient to establish that 



Wendy's owed Mickelsen a duty of care to prevent the third-party behavior that caused 



Mickelsen's death.  Mickelsen argues that the superior court erred as a matter of law in 



reaching that conclusion.15 



               The existence of a duty turns not on the particularized facts of a given case, 



but rather on the "basic nature of the relationship between the parties to the cause of 



action."16    Here, the parties use different terms to define that basic relationship.  In 



Mickelsen's view, the operative relationship is between a highway-adjacent commercial 



property    owner    whose   customers    regularly   gain  access   to  the  property  from   that 



highway, and the other motorists who may be put at risk by the property owner's active 



"governance      of   the  access  of   those  customers."  In   Wendy's    view,   the  operative 



relationship is between a passive property owner and the motorists who may be put at 



risk by the negligent conduct of "third parties" (the potential   patrons) on the public 



streets adjacent to the property. 



               We use a three-step process to determine whether a duty of care exists. 



        14     Id. ; Bolieu v. Sisters of Providence in Wash. , 953 P.2d 1233, 1235 (Alaska 



1998);   see   also   Dore   v.  City   of  Fairbanks ,   31  P.3d   788,   791   (Alaska    2001) 

("Determining whether a duty exists in the type of case presented is the first analytical 

step in deciding whether a negligence action can be maintained." (quoting Kooly v . State, 

958 P.2d 1106, 1108 (Alaska 1998))). 



        15     Determining      whether    a  legal  duty   exists  is  a  question   of  law   for 



determination by the court.  See supra note 6 and accompanying text. 



        16     P.G.  v. State, Dep't of Health & Human Servs., Div. of Family & Youth 



Servs., 4 P.3d 326, 331 (Alaska 2000) (quoting M.A. v. United States , 951 P.2d 851, 854 

n.6 (Alaska 1998)). 



                                               -10-                                          6670
 


----------------------- Page 11-----------------------

First, we look for a duty imposed by statute.17   If none exists, we then determine if the 



current case falls in the class of cases controlled by existing precedent.18  If no closely 



related case law exists, we weigh the public policy considerations enumerated in D.S.W. 



v. Fairbanks North Star Borough School District .19    Here, Mickelsen does not allege a 



statutory duty, so we turn first to the case law. 



              1.	    This case is not controlled by our precedents in the Schumacher 

                     and R.E. lines of cases. 



              Wendy's argues that the current case falls within two lines of existing cases, 



both of which would lead to the conclusion that no duty of care exists: the Schumacher20 



line of cases and the R.E.21 line of cases. We discuss both in turn. 



              The general rule of landowner liability as established by our case law is that 



landowners have a "duty to use due care to guard against unreasonable risks created by 



dangerous conditions existing on their property."22      The parties disagree on whether 



Mickelsen has alleged facts amounting to the existence of a "dangerous condition" on 



       17     Wongittilin v. State, 36 P.3d 678, 681 (Alaska 2001); see also Dore, 31 



P.3d at 792-93 (determining existence of statutory duty before looking to public policy). 



       18	    Wongittilin, 36 P.3d at 681. 



       19     Id . (citing D.S.W v. Fairbanks N. Star Borough Sch. Dist., 628 P.2d 554, 



555 (Alaska 1981)); see also Dore, 31 P.3d at 793 ("If no existing case law covers this 

class, we then weigh the factors that support and oppose the imposition of liability."). 



       20	    Schumacher v. City & Borough of Yakutat, 946 P.2d 1255 (Alaska 1997). 



       21     R.E. v. State, 878 P.2d 1341 (Alaska 1994). 



       22     Burnett v. Covell , 191 P.3d 985, 989 (Alaska 2008); see also Webb v. City 



& Borough of Sitka, 561 P.2d 731, 733 (Alaska 1977), superseded on other grounds 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, subsequently renumbered AS 09.65.200). 



                                            -11-	                                     6670
 


----------------------- Page 12-----------------------

Wendy's property within the meaning of that rule.               Wendy's argues that no duty exists 



because this case is controlled by Schumacher v. City & Borough of Yakutat,23 which 



held   that   "the   definition   of   'conditions'   that   landowners   may   be   required   to   protect 



against does not include the conduct of third parties."24 



                 In  Schumacher, a child   was   injured when he collided with a car while 



sledding down a city-owned road.25           The city was aware that children frequently sledded 



on the road and had taken no steps to reduce the danger.26                 After weighing the public 



policy considerations, we held that the city "did not have a duty to protect [the child] 



from obvious risks created by his own conduct."27               We explained: 



                 In   essence,   Schumacher   is   arguing   that   this   court   should 

                 impose liability on anyone who is aware of another's self- 

                 destructive behavior, has any ability to prevent that behavior, 

                 and    fails  to  save  the   injured   party   from    his  or  her  own 

                 conduct.       Such    a  holding     would    transform     the   law   of 

                 negligence from a means whereby a person may recover for 

                 losses   caused   by   a   danger   which   another's   unreasonable 

                 behavior created, to a mechanism permitting persons injured 

                 by their own conduct to compel any who failed to prevent 

                 that conduct to share the burdens of their negligence.  We 

                 decline to permit such a result.[28] 



We also noted that "other courts have expressly excluded third party activity" from the 



        23       946 P.2d 1255. 
 



        24       Id . at 1258. 
 



        25
      Id. at 1256. 



        26       Id . 



        27       Id. at 1257. 



        28       Id. (emphasis in original). 



                                                    -12-                                              6670
 


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

definition of the " 'conditions' that landowners may be required to protect against."29 



                Schumacher is distinguishable from the present case.  The individual who 



caused the injury to the child in Schumacher was the child himself.  In the present case, 



Mickelsen   does   not   allege   that   Wendy's   should   be   held   liable   for   failing   to   protect 



Mickelsen from his own dangerous actions.               Nor does Mickelsen's complaint, as we 



interpreted it in the previous section, allege that Wendy's should be held liable for failing 



to protect Mickelsen from the dangerous actions of a third party.                Rather, Mickelsen's 



complaint alleges that Wendy's should be held liable for its own actions in creating a 



dangerous condition on its land.  We held in Schumacher that the city was not liable for 



failing to protect the child from his own dangerous activity.30               This holding does not 



imply that a landowner is categorically immune from liability for harm caused by a 



dangerous condition it has created merely because the dangerous condition also requires 



the participation of a third party. 



                It is also relevant that the city in Schumacher was not in the business of 



providing safe sledding on its streets.   Wendy's is in the business of providing an entry 



and exit to its customers.  Holding that a business has a duty to conduct one of its core 



operations in a safe manner does not involve the transformation of the law of negligence 



        29      Id. at 1258 (citing Rombalski v. City of Laguna Beach , 261 Cal. Rptr. 820, 



824 (Cal. App. 1989) (holding that rock was not "dangerous condition" injuring one who 

dove from it, since rock only became dangerous as result of plaintiff's misuse of it); 57 

AM .    JUR .  2D Municipal,      County,    School,    and   State   Tort   Liability     284   (1988) 

(" 'Dangerous condition' refers to the physical condition of the property itself, not to 

activities on the property, and does not generally encompass the wrongful, criminal, or 

negligent conduct of third persons.")).  In Kooly v. State , 958 P.2d 1106 (Alaska 1998), 

we followed Schumacher in finding that the landowner did not owe a sledding child a 

duty of care.    The facts and analysis in Kooly are very similar to those in Schumacher . 



        30      Schumacher, 946 P.2d at 1257. 



                                                  -13-                                             6670
 


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

that would have resulted had we held, in Schumacher, that the city had a duty to protect 



all who entered its land from harming themselves through self-destructive behavior. 



                 We thus conclude that the current case is not controlled by the Schumacher 



line of cases. 



                Next, Wendy's argues that this case falls into the R.E.31 class of cases, in 



which   we   have   applied   Restatement   (Second)   of   Torts   sections   314   through   320   to 



determine whether the defendant had a duty to protect the plaintiff from a third party's 



dangerous conduct.32        Section 314 contains the traditional common-law rule that there 



is no general duty to safeguard others from foreseeable harm when that would require 



controlling the conduct of another person or warning of such conduct.33                     Section 315 



provides that there is "no duty so to control the conduct of a third person as to prevent 



him from causing physical harm to another unless . . .  a special relation exists between 



the actor and the third person which imposes a duty upon the actor to control the third 



person's conduct."  Wendy's argues that under these standards, it had no duty to control 



the conduct of drivers on the road adjacent to its property, even if it was foreseeable to 



Wendy's that a driver like Hayward posed a risk of physical harm to a passing motorist 



like Mickelsen. 



        31      R.E.   v.   State ,   878   P.2d   1341   (Alaska   1994).   This   class   of   cases   also 



includes State v. Sandsness, 72 P.3d 299 (Alaska 2003), and Dore v. City of Fairbanks , 

31 P.3d 788 (Alaska 2001). 



        32      R.E., 878 P.2d at 1348; see also Sandsness, 72 P.3d at 301; Dore , 31 P.3d 



at 793. 



        33      R.E. , 878 P.2d at 1348 (citing RESTATEMENT  (SECOND) OF  TORTS   314 



("The fact that the actor realizes or should realize that action on his part is necessary for 

another's   aid   or   protection   does   not   of   itself   impose   upon   him   a   duty   to   take   such 

action.")). 



                                                   -14-                                              6670
 


----------------------- Page 15-----------------------

                Mickelsen responds that the current case does not belong to the R.E. class 



of cases because of the marked differences between those cases and this one.  In each of 



the R.E. cases, the defendant was a government entity and the dangerous third party 



conduct at issue was intentional criminal behavior.34          Here, the defendant is a commercial 



property owner and the dangerous third party conduct was the negligent driving of the 



defendant's third-party customer.          We agree with Mickelsen that the current case does 



not belong to the R.E. class of cases.  Although we decided that the Restatement sections 



stated the optimal rule of law in the class of cases involving the government's duty to 



protect potential victims from the criminal conduct of third parties, it does not follow that 



we have adopted the sections wholesale or without regard to context.  We have said that 



"the process of finding that a defendant owes a duty to a plaintiff is one which involves 



a fine balancing of conflicting policies; it is in essence an attempt to determine whether 



it would be fair and equitable to require an individual to act . . . in a specified manner so 



as to avoid undue risk of harm to third persons."35           Because the current case presents a 



significantly different set of "conflicting policies" and other considerations, we conclude 



that the current case is not controlled by the R.E. class of cases. 



                2.      This case is controlled by our precedent in Webb. 



                Mickelsen's appeal primarily relies on the Restatement (Second) of Torts 



section 364 as establishing Wendy's duty of care.             We have not previously recognized 



the section 364 standard as controlling and no Alaska case has previously cited it.                  It is 



        34      Sandsness, 72 P.3d at 300 (suit against state agency for failing to protect 



man   killed   by   prisoner   on   early   release); Dore ,   31   P.3d   at   789   (suit   against   police 

department for failing to protect woman killed by man for whom arrest warrant was 

outstanding); R.E., 878 P.2d at 1342 (suit against state agency for failing to protect child 

from sexual abuse in state licensed daycare facility). 



        35      Busby v. Municipality of Anchorage , 741 P.2d 230, 232-33 (Alaska 1987). 



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unnecessary for us to adopt the Restatement in this case because our decision in  Webb 



v. City & Borough of Sitka36 provides controlling precedent. Where existing Alaska case 



law provides adequate grounds for deciding an issue, judicial economy argues in favor 



of relying on those grounds rather than adopting a new rule in order to reach the same 



result. 



                Webb established that "[a] landowner or owner of other property must act 



as a reasonable person in maintaining his property in a reasonably safe condition in view 



of all of 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."37 



                According to Mickelsen's complaint, "[t]he use of the 5th Avenue exit as 



a short-cut entry . . . is a[n] . . . artificial condition that posed an unreasonable risk of 



harm to west-bound traffic on 5th Avenue," and Wendy's failed "to take action to make 



this dangerous condition safe."   As a result of Wendy's alleged creation of this short-cut 



entry route and its alleged failure to take reasonable steps to prevent the use of that route, 



Wendy's customers regularly drove across two lanes of oncoming traffic in order to 



reach the restaurant.  In terms of the Webb factors, the alleged dangerous condition was 



likely to result in traffic accidents and resulting injury; a collision between a customer's 



vehicle and oncoming traffic was likely to be gravely serious; and Wendy's was in a 



much stronger position to bear the burden of avoiding the risk than drivers in the west- 



bound lanes such as Mickelsen. Such drivers were effectively powerless to prevent third 



        36      561   P.2d   731   (Alaska   1977), superseded   on   other   grounds   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, subsequently renumbered as AS 09.65.200). 



        37     Id.  at 733; see also Burnett v. Covell, 191 P.3d 985, 990 (Alaska 2008) 



(presenting    Webb  as   first   articulation   of   these   "ordinary   principles  of   negligence" 

governing conduct of landowners). 



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parties such as Hayward from taking the short-cut.  Wendy's, if nothing else, might have 



altered the design of the Fifth Avenue exit or posted more effective warnings.  Whether 



Wendy's failure to take such steps was unreasonable, and whether it breached its duty, 



are not questions before us at this stage of the case. 



                 In   sum,   Wendy's   had   a   duty   under  Webb to   maintain   its   property   in   a 



reasonably safe manner in view of all relevant circumstances.  This duty applied to those 



entering and exiting Wendy's and to those who might be affected by those entering and 



exiting Wendy's, pedestrian or otherwise.38             It may yet be proper for the superior court 



to dismiss Mickelsen's claim on summary judgment, or it may be that the case must go 



to trial.  But Mickelsen's claim cannot be dismissed as a matter of law based on Wendy's 



owing   no   duty   of   care   to   passing   motorists   allegedly   endangered   by   the   artificial 



        38       The dissent asserts that Mickelsen had "no connection to Wendy's (that is, 



he   was   not   a   customer   of   Wendy's   but   merely   an   innocent   person   driving   past   the 

restaurant on a public highway when another person made an illegal turn in front of him 

. . .)," but this formulation minimizes the connection between Wendy's and Mickelsen. 

Mickelsen was on a roadway immediately adjacent to Wendy's property and was killed 

when   a   customer   of   Wendy's   collided   with   him   allegedly   as   a   result   of   Wendy's 

defectively designed improvements. 



                 Other   courts   have   reached   similar   conclusions   in   cases   involving   exit 

driveways   used   as   business   entrances   without   adequate   safeguards   or   warnings.            In 

Bourdreaux v. Sonic Indus., Inc. , 729 P.2d 514 (Okla. App. 1986), the court held that a 

drive-in   restaurant   owner   owed   a   duty   to   its   customers   to   create   a   reasonably   safe 

entrance and exit and that this duty extended to members of the public traveling the 

highway: "If Sonic owes a duty to [a customer] to refrain from creating a hazardous exit, 

then that duty extends to a motorist placed in jeopardy by any breach of that duty."  Id. 

at 517.  In Lutheran Hosp. of Ind. v. Blaser , 634 N.E.2d 864, 870 (Ind. App. 1994), the 

court concluded that because a business "knew the manner in which its invitees, both 

pedestrians, and drivers, customarily used the driveway of the 'exit', . . . it [was] under 

a duty to correct the dangerous conditions and guard against foreseeable injuries." 



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conditions on Wendy's property.39 



                Finally, having concluded that Webb provides controlling precedent in the 



present case, it is   unnecessary for us to determine whether the public policy factors 



enumerated in D.S.W. v. Fairbanks North Star Borough School District40 support the 



imposition of a duty of care. 



V.      CONCLUSION 



                Because, read liberally, the allegations of the complaint state a cause of 



action, we REVERSE the superior court's order of dismissal and REMAND for further 



proceedings consistent with this opinion. 



        39      The dissent speculates about how this case will proceed in the future - 



hypothesizing   that   a   third-party   complaint     will   be  filed,   that   at   trial   fault   will   be 

apportioned to the third-party defendant, that Mickelsen's estate will recover nothing but 

will be liable for costs and fees, and that "[a]ll the court's ruling will accomplish is to 

increase unnecessary costs on society" - but it is only speculation.               Today's opinion 

does nothing more than re-affirm longstanding Alaska law that a landowner has a duty 

"to   maintain    its  property    in  a  reasonably    safe   manner    in  view    of  all  relevant 

circumstances." 



        40      628 P.2d 554, 555 (Alaska 1981). 



                                                 -18-                                           6670
 


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STOWERS, Justice, dissenting. 



                 I disagree with the court's opinion.           I would affirm the superior court's 



dismissal in favor of Wendy's. I do not believe that Wendy's duty extends to Mickelson, 



an innocent person with no connection to Wendy's (that is, he was not a customer of 



Wendy's but merely an innocent person driving past the restaurant on a public highway 



when another person made an illegal turn in front of him, causing the collision and his 



death).  I also think that Wendy's has no duty to prevent a person from making an illegal 



turn    in  his  wrongful     attempt   to  shortcut   into   Wendy's      parking    lot.  To    extend    a 



business's duty to the circumstances of this case will vastly expand the potential liability 



and attendant costs to businesses all over Alaska.  This places an intolerable burden not 



only   on   those   businesses,   but   on   society   at   large,   because   the   costs   of   this   greatly 



expanded liability will surely be passed down to the people in the form of higher costs 

for goods and services, higher insurance costs, and increased litigation.1 



                 I  also   believe   that   our  current    framework      for  a  landowner's      duty   is 



adequately set out in Schumacher v. City & Borough of Yakutat, where we stated: 



                 In   essence,   Schumacher   is   arguing   that   this   court   should 



        1        Such litigation would also likely be hugely wasteful.   Now that the case is 



remanded for further proceedings, I assume that the first thing Wendy's will do is file a 

third-party complaint for apportionment of fault against Hayward, the driver who made 

the illegal turn and caused the collision. At trial, the jury will be asked to apportion fault, 

and   it   is   entirely   foreseeable   that   fault   will   be   apportioned   wholly   or   in   very   large 

percentage to Hayward.   Businesses like Wendy's will bear the costs of litigating cases 

like this one, but there will be little likelihood of compensation for those who are injured 

or killed by the illegal acts of people like Hayward, the scofflaw driver in this case. 

Thus, the court's ruling will not advance the interests of injured innocents (if anything, 

if my prognostication is accurate, the innocent plaintiff will likely end up not only not 

receiving compensation from Wendy's, but will owe Wendy's its costs and attorney's 

fees if Wendy's prevails on its apportionment of fault defense).                  All the court's ruling 

will accomplish is to increase unnecessary costs on society. 



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----------------------- Page 20-----------------------

                impose liability on anyone who is aware of another's self- 

                destructive behavior, has any ability to prevent that behavior, 

                and   fails  to  save  the  injured   party  from   his  or  her  own 

                conduct.     Such     a  holding    would    transform    the  law   of 

                negligence from a means whereby a person may recover for 

                losses caused by the danger which another's unreasonable 

                behavior created, to a mechanism permitting persons injured 

                by their own conduct to compel any who failed to prevent 

                that conduct to share in the burden of their negligence.  We 

                decline to permit such a result.[2] 



Of course, Schumacher is distinguishable in that, in Schumacher, it was the negligent 



child who caused the injury to himself, not a third-party scofflaw.             But the underlying 



principle remains the same - the court should not impose liability on the owner of 



property where the property owner fails to prevent the unlawful behavior of a third party, 



whose unlawful behavior occurs off the premises, and causes injury off the premises. 



The court's holding today transforms the law of negligence into a mechanism permitting 



a party injured by a third party's illegal and negligent conduct to compel an adjacent 



property owner who failed to prevent the illegal conduct to share in the burden of the 



scofflaw's illegal conduct. 



        2       946 P.2d 1255, 1257 (Alaska 1997) (emphasis deleted). 



                                                 -20-                                             6670 

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