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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hurn v. Greenway (2/8/2013) sp-6749

Hurn v. Greenway (2/8/2013) sp-6749

        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 



DAVID HURN, as parent and next                  ) 

best friend of Minor Children,                  )        Supreme Court No. S-14343 

D.H. and P.H.,                                  ) 

                                                )        Superior Court No. 3PA-08-02412 CI 

                        Appellant,              ) 

                                                )        O P I N I O N 

        v.                                      ) 

                                                )       No. 6749 - February 8, 2013 

SIMONE GREENWAY,                                ) 

                                                ) 

                        Appellee.               ) 

                                                ) 



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

                Judicial District, Palmer, Kari Kristiansen, Judge. 



                Appearances:       Ted    Stepovich,    Anchorage,      for  Appellant. 

                Barry   J.   Kell,   Call,   Hanson   &   Kell,   P.C.,   Anchorage,   for 

                Appellee. 



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

                Stowers, Justices. 



                FABE, Justice. 



I.      INTRODUCTION 



                Simone   Greenway   and   her   friend   Carrie   Randall-Evans   were   dancing 



together   in   a   suggestive   manner   and   teasing   Jeffrey   Evans,   Carrie's   husband,   when 



Jeffrey left the room, returned with a pistol, and shot everyone inside, killing Carrie.  He 


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

then shot and killed himself.        David Hurn, the father of Carrie's two minor children, 



sued, claiming that Greenway's participation in the dance was negligent either because 



it   breached   her   duty   as   homeowner   to   control   her   guests   or   because   it   created  a 



foreseeable and unreasonable risk of violence. Greenway moved for summary judgment. 



Because property owners generally have no duty to control the conduct of third parties 



in their homes, and because murder was not the foreseeable result of suggestive dancing, 



we decline to hold Greenway liable. 



II.     FACTS AND PROCEEDINGS 

        A.      Facts1 



                 Simone Greenway met Carrie Randall-Evans in the summer of 2006 at a 



mutual friend's house where Carrie was staying because she was afraid of her husband, 



Jeffrey Evans.   The two women took walks together, and Carrie confided in Greenway 



that Jeffrey scared her and that she was happy to have a job on the Slope so that she 



could be independent.        Carrie confessed to Greenway that she was afraid that Jeffrey 



would hurt her, that she would never get away, and that Jeffrey might kill her. 



                Two   months   later,   Greenway   met   Jeffrey   while   at   a   bar   with   her   ex- 



husband. While at the bar, Jeffrey insulted Carrie, saying she was "no good, and she was 



a tramp, and he didn't understand why she had her job and he didn't."  Jeffrey threatened 



to "beat the living shit" out of Carrie if she did not send him money, and Greenway felt 



that   Carrie   was   "a   bit   threatened   by   him." Greenway   saw   Jeffrey   on   a   few   more 



occasions,   but   did   not   have   an   extensive   relationship   with   him   and   only   saw   him 



incidentally   when   she   was   with   her   ex-husband.      Greenway   said   that   during   these 



occasions Jeffrey was always "bad-mouthing" Carrie and would threaten "to beat the shit 



        1       These facts are taken from the deposition of Simone Greenway.                  For the 



purposes of summary judgment, we accept these facts as true and read them in the light 

most favorable to Hurn. 



                                                  -2-                                               6749 


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

out of her."    But prior to the murder, Greenway had never witnessed Jeffrey become 



violent or threaten to shoot Carrie. 



                On the day of the murder, Greenway met with her ex-husband again, who 



asked her to give Jeffrey a ride home.         Jeffrey asked if they could pick up Carrie, who 



had recently returned from a trip to San Antonio, Texas, and Greenway agreed.                   While 



in the car, Carrie showed Jeffrey her necklace and said, "[L]ook what my sugar daddy 



got me." Greenway immediately looked to Jeffrey because it was a "very uncomfortable 



situation." Jeffrey's expression was "stone cold." Carrie then asked to go to Greenway's 



house.   Greenway agreed and called her friend, Bill Anthony, who was at the house, and 



asked him to start preparing some moose meat.              Carrie, Greenway, and Jeffrey began 



drinking, and Anthony went home. 



                Throughout the evening, Carrie and Jeffrey went to the back bedroom and 



bathroom alone, and Carrie did not appear afraid.  Later, Carrie and Greenway sat at one 



end   of   the   couch   and   held   hands;   Carrie   appeared   afraid   but   did   not   discuss   why. 



Greenway said that Carrie sat next to her "like she wanted [Greenway] to protect her." 



Jeffrey asked Carrie and Greenway, "[W]hat would you girls do if somebody came in 



that door right now, after you?"       Carrie and Greenway gave each other a high five and 



said, "[W]e'd kick his ass." 



                Carrie and Greenway began sparring, and the sparring turned to dancing. 



While     dancing,   Greenway      and   Carrie   kissed   and  touched    each   other.   Greenway 



acknowledged that they were "laughing and joking and making fun out of [Jeffrey]" and 



that she was teasing Jeffrey "on purpose," with the intent of punishing him "because he 



was a jealous man."        Greenway said that while she was laughing at Jeffrey she was 



attempting   to   express   to   Carrie   the   nonverbal   message   that   "you   don't   have   to   be 



afraid. . . . [T]his my domain, you don't have to be afraid here." While being teased, 



Jeffrey "had no emotion, showed none whatsoever.               He was stone cold, no emotion." 



                                                  -3-                                            6749
 


----------------------- Page 4-----------------------

               Jeffrey left the room and Carrie left for the bathroom. Jeffrey returned with 



a gun.  Greenway did not know that Jeffrey had brought a gun, and she did not keep guns 



in her home.  Jeffrey shot Greenway, who fell to the floor.  Anthony, who had rejoined 



the gathering earlier, entered the room, and Jeffrey shot him five times.   Jeffrey went to 



Greenway, knelt beside her, showed Greenway her car keys in one hand, and shot her 



again in the chest.  Jeffrey then ran after Carrie and shot her three times, including once 



in the back of the head, killing her.     Jeffrey then turned the gun on himself and killed 



himself.   Greenway survived the attack. 



        B.     Proceedings 



               David Hurn, the father of Carrie's two minor children, brought suit on their 



behalf   against   Jeffrey   Evans's   estate   and   Simone   Greenway,   seeking   damages   for 

Carrie's murder.   Jeffrey's estate settled.2    Regarding Greenway, the complaint alleged 



that   "Greenway      was   negligent   when    she  made    sexual   advances    towards    Carrie 



Randall-Evans while her husband Jeffrey Evans was in the home" and that "[a]s a direct 



and proximate result of Simone's negligence, Carrie was shot by Jeffrey Evans."  Hurn 



requested damages on behalf of Carrie's children. 



               Greenway filed a motion for summary judgment, arguing that she did not 



cause Carrie's murder and that she owed no duty to prevent Jeffrey from murdering 



Carrie.   The superior court granted the motion, and Hurn appeals that decision. 



        2      As    a  result  of  settlement,  Jeffrey's   estate  confessed   to  an  $800,000 



judgment.    The estate did not have any assets from which to pay the judgment. 



                                                -4-                                            6749 


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

III.    STANDARD OF REVIEW 



                We are asked to review a grant of summary judgment and to determine the 



existence and extent of a duty of care.  These are questions of law, which we review de 



       3 

novo. 



IV.     DISCUSSION 



                "In reviewing a grant of summary judgment, this court must determine 



whether any genuine issue of material fact exists and whether on the established facts the 

moving   party   is   entitled   to   judgment   as   a   matter   of   law."4 When   determining   the 



existence of a duty of care, summary judgment is appropriate where "the only reasonable 



inference from the undisputed facts is that one party owed another no duty whatsoever - 



or owed a duty clearly and vastly narrower in scope than the one that the other party 

asserts."5  Greenway argues that Hurn has alleged no facts that would give rise to a duty 



to refrain from her dance with Carrie.        Hurn responds that Greenway had such a duty 



either because she had a special relationship with her guests as a landowner or because 



there is a general duty not to provoke a third party when violence is the foreseeable 



result. 



        3       See State v. Sandsness, 72 P.3d 299, 301 (Alaska 2003) (citing Beck v. 



State, Dep't of Transp. & Pub. Facilities, 837 P.2d 105, 109 (Alaska 1992)). 



        4      Nielson v. Benton , 903 P.2d 1049, 1051-52 (Alaska 1995). 



        5      Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell , 956 P.2d 1199, 



1203 (Alaska 1998). 



                                                 -5-                                           6749
 


----------------------- Page 6-----------------------

        A.	     Greenway   Did        Not   Have   A   Special   Relationship   With   Carrie   Or 

                Jeffrey That Would Give Rise To A Duty. 



                Generally, a person has no duty to protect others from harm by a third 

party.6   But the Restatement (Second) of Torts  315 recognizes such a duty if there is 



a special relationship between the parties: 



                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) 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,    or  (b)   a  special   relation   exists 

                between the actor and the other which gives to the other a 

                right to protection.[7] 



                Hurn argues that Greenway had a special relationship with both Jeffrey and 



Carrie because Greenway owned the property and Jeffrey and Carrie were invitees.  But 



Alaska   has   abolished   the   common   law   distinction   between   licensees,   invitees,   and 

trespassers.8    Instead, a landowner has a general duty to "act as a reasonable person in 



maintaining       his  property     in  a   reasonably     safe   condition     in   view    of  all  the 

circumstances."9      This generally does not include the duty to control guests in the home. 



In Schumacher v. City & Borough of Yakutat, we held that "landowners have a duty to 



        6       See, e.g., Parnell v. Peak Oilfield Serv. Co., 174 P.3d 757, 762 (Alaska 



2007); Bryson v. Banner Health Sys. , 89 P.3d 800, 804 (Alaska 2004); Dore v. City of 

Fairbanks , 31 P.3d 788, 793 (Alaska 2001). 



        7       RESTATEMENT        (SECOND)  OF     TORTS        315   (1965).  Section 315 is well 



established in Alaskan case law. See, e.g., Wongittilin v. State, 36 P.3d 678, 683 (Alaska 

2001); Dore , 31 P.3d at 793. 



        8       See Webb v. City & Borough of Sitka, 561 P.2d 731, 733 (Alaska 1977), 



superseded 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). 



        9	      Id. 



                                                   -6-	                                            6749
 


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

use   due   care   to   guard   against   unreasonable   risks   created   by   dangerous   conditions 



existing on their property" but "[a]side from activities induced by 'attractive nuisances,' 



the definition of 'conditions' that landowners may be required to protect against does not 

include   the   conduct   of   third   parties."10 We   clarified   in  Estate   of   Mickelsen   ex   rel. 



Mickelsen v. North-Wend Foods, Inc. that a landowner might have a duty to control the 



actions of a third party if those actions were sufficiently related to a condition on the 

land,11 but here Greenway's taunting dance was unrelated to conditions on her property 



or in her home. Therefore Greenway's ownership of the property cannot make her liable 



for Carrie's death. 



        B.      Greenway Did Not Have A Duty Not To Provoke Jeffrey. 



                Hurn argues that Greenway had a duty not to provoke Jeffrey by dancing 



seductively with his wife. The Restatement (Second) of Torts  302B would hold actors 



liable if they unreasonably increased the risk of crime: 



                An act or an omission may be negligent if the actor realizes 

                or should realize that it involves an unreasonable risk of harm 

                to another through the conduct of the other or a third person 

                which is intended to cause harm, even though such conduct 

                is criminal.[12] 



In such a case, the criminal act is not an intervening cause that would sever liability.13 



        10      946 P.2d 1255, 1258 (Alaska 1997) (footnote omitted). 



        11      274 P.3d 1193, 1202 (Alaska 2012)   (interpreting the duty to "maintain 



property in a reasonably safe condition" to mean that the property owner may have had 

a duty to maintain its driveway in such a way as to reduce the likelihood of accidents 

caused by third parties). 



        12      RESTATEMENT (SECOND) OF TORTS  302B. 



        13      RESTATEMENT  (SECOND) OF  TORTS  449 ("If the likelihood that a third 



person may act in a particular manner is the hazard or one of the hazards which makes 

                                                                                        (continued...) 



                                                  -7-                                             6749
 


----------------------- Page 8-----------------------

                Unlike  315, we have never adopted  302B.14               We do not decide today 



whether   302B applies in Alaska because even if it does, Greenway is not liable for 



Jeffrey's crimes. 



                1.       If  302B is controlling in Alaska, it would not support liability 

                        in this case. 



                        a.       The text of the Restatement does not support liability. 



                The text and comments of  302B do not support the imposition of a duty. 



Comment d makes it clear that an actor is responsible for the crimes of third parties only 



in unusual circumstances: 



                Normally       the actor    has   much    less   reason   to  anticipate 

                intentional misconduct than he has to anticipate negligence. 

                In   the   ordinary   case   he   may   reasonably   proceed   upon   the 

                assumption that others will not interfere in a manner intended 

                to cause harm to anyone.        This is true particularly where the 

                intentional     conduct     is   a  crime,    since  under      ordinary 



        13(...continued) 



the actor negligent, such an act whether innocent, negligent, intentionally tortious, or 

criminal does not prevent the actor from being liable for harm caused thereby."). 



        14      Although we have cited  302B several times in dicta, this court has never 



invoked that section as a source of liability.  See Bryson v. Banner Health Sys., 89 P.3d 

800, 805 n.11 (Alaska 2004) (quoting almost identical language in Prosser and Keeton 

on Torts for the proposition that a special relationship may yield a duty to protect another 

from a third party); Joseph v. State , 26 P.3d 459, 471 n.67 (Alaska 2001) (citing  302B 

for    the   proposition     that   "a   reasonably     foreseeable     occurrence      cannot    be   an 

intervening/superseding cause if the actor has a duty to prevent that occurrence"); Wilson 

v. City of Kotzebue, 627 P.2d 623, 630 n.10 (Alaska 1981) (citing  302B to reject a jury 

instruction that "[e]very person who, himself, is exercising ordinary care, has a right to 

assume that every other person will perform his duty and obey the law"). 



                                                   -8-                                             6749
 


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

                circumstances it may reasonably be assumed that no one will 

                violate the criminal law.[15] 



                Comment   e   creates   an   exception   to   this   rule   "where   the   actor's   own 



affirmative act has created or exposed the other to a recognizable high degree of risk of 

harm through such misconduct, which a reasonable man would take into account."16 



Hurn argues that Greenway's dance created this "recognizable high degree of risk."  But 



the illustrations to comment e convince us that a tortfeasor's "affirmative act" must rise 



above mere teasing to find a home in this exception. 



                The   Restatement   gives   four   examples   of   affirmative   acts   sufficient   to 

sustain liability under  302B for the criminal acts of another:17 



                1.      The actor takes affirmative steps to defeat a protection the victim 



placed around his person or property; 



                2.      The actor brings the victim and criminal into contact with each other 



under circumstances which afford a great opportunity for misconduct; 



                3.      The actor provides the instrument of the crime to the criminal; or 



                4.      The actor "acts with knowledge of peculiar conditions which create 

a high degree of risk of intentional misconduct."18 



                The list is not exhaustive, but these examples indicate that "affirmative act" 



in   comment      e  refers  to  substantial   misfeasance     that  unmistakably      points   toward 



        15      RESTATEMENT (SECOND) OF TORTS   302B cmt. d. 



        16      RESTATEMENT (SECOND) OF TORTS   302B cmt. e. 



        17      Id.  These examples have been paraphrased.  Comment e would also hold 



an actor liable for the crimes of a third party if the actor has a special relationship with 

the victim, and the Restatement gives additional examples of such relationships.  But as 

we have discussed above, no such special relationship was present here. 



        18      RESTATEMENT (SECOND) OF TORTS   302B cmt. e.H. 



                                                  -9-                                            6749
 


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

culpability. The only two categories into which Greenway's dance could possibly fit are 



the second and fourth: bringing the victim and criminal into contact with each other and 



acting "with knowledge of peculiar conditions which create a high degree of risk of 



intentional misconduct."        As to the second category, Hurn conceded at oral argument 



before us that simply driving   Carrie   and   Jeffrey to the same house is not enough to 



sustain liability and that Greenway cannot be said to have brought the married couple 



into contact with each other.  And the illustration to the fourth example suggests that the 



degree of risk required to impose liability must be closer to "certainty of harm" than the 



mere suspicion of danger entertained by Greenway.  In the illustration, a railroad knows 



that its employees are on strike and are tearing up tracks and attempting to wreck trains, 



but the railroad fails to guard its tracks and runs its trains as normal.              The railroad is 



negligent. But both the railroad's knowledge of "peculiar conditions" and the risk to the 



victims   in   this   example   are   of   a   different   kind   and   quality   than   in   the   present   case 



because the criminal element was manifest before the railroad's decision to run the trains. 



There is nothing to suggest a sufficient degree of risk to create a duty in this case. 



                        b.       Liability in this case would be unprecedented. 



                The Restatement is authoritative only as a statement of the common law, 



and no court has ever stretched  302B to impose a duty in a case like this one.  Such a 



duty cannot be found in our own precedent, and other courts have frequently declined 

to impose a duty in similar circumstances.19 



        19      See, e.g., Fiala v. Rains , 519 N.W.2d 386, 389 (Iowa 1994) (holding that 



it was not foreseeable that an abusive boyfriend would be waiting to attack another man 

that his girlfriend brought home one night); Taylor v. Louis, 349 S.W.3d 729, 737 (Tex. 

App. 2011) (holding that violence was not the foreseeable result of opening the door to 

an abusive and upset ex-husband while a new boyfriend was over); Kim v. Budget Rent 

A Car Sys., Inc. , 15 P.3d 1283, 1285 (Wash. 2001) (en banc) (holding that it was not 

                                                                                         (continued...) 



                                                  -10-                                             6749
 


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

                 Hurn   cites Pamela   L.   v.   Farmer ,20    a   case   from   the   California   Court   of 



Appeal, as support.  In Pamela L. , a wife invited children to swim in her pool, promised 



their parents they would be safe, and left the children alone in the care of her husband 

who was a convicted child molester.21           After the children were assaulted, the court held 



that a jury could find the wife liable under  302B because she unreasonably increased 

the risk of the attack.22    But this is not like the present case.  The wife in Pamela L. was 



liable because she brought the victims into contact with her husband and lied to the 



children's parents, thereby defeating their protection.              In contrast, Greenway's dance 



may have provoked but did not facilitate Jeffrey's rampage.   Greenway did not defeat a 



protection Carrie had erected around herself, nor was Greenway responsible for bringing 



the parties together. 



                 A review of other cases where  302B has been invoked to support liability 

reveals similar distinctions.23      In some cases the tortfeasors provided the instrument of 



        19(...continued) 



foreseeable that a third party would steal a minivan that had been left in a safe part of 

town, unlocked with the keys in the ignition, and cause a crash). 



        20       169 Cal. Rptr. 282 (Cal. App. 1980). 



        21      Id. at 284. 



        22      Id. at 284-85. 



        23       The only case we are aware of with similar facts where the court found 



liability   is Touchette   v.   Ganal,   922   P.2d   347   (Haw.   1996).       In  Touchette,   a   wife 

repeatedly flaunted her love affair in front of her husband.  Id. at 349.                In response, the 

husband murdered his wife's parents and set fire to the lover's house and office, killing 

and injuring several more people. Id. at 348-49.  The Supreme Court of Hawai'i vacated 

the trial court's order granting a motion to dismiss, holding that, if the plaintiffs proved 

their allegations that the wife taunted and humiliated the husband and caused him "to 

suffer severe and extreme emotional and mental distress and depression," a jury could 

                                                                                           (continued...) 



                                                   -11-                                              6749
 


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

harm;24 in others they brought the parties together knowing that violence was likely.25 



And acceptance of even this narrow application of  302B is not universal.26                Hurn does 



not argue that Greenway was negligent for driving Carrie and Jeffrey - at Carrie's 



request - to her house.       Nor does he contend that Greenway supplied Jeffrey with the 



means   to   commit   the   crime.   Therefore,   a   duty   in   this   case   cannot   be   rooted   in   the 



precedent of this or any jurisdiction. 



        23(...continued) 



find the wife negligent under  302B.  Id. at 358.           But the allegations in that case were 

more severe than the uncontested facts in this one. 



        24      See Parilla v. King County, 157 P.3d 879, 886 (Wash. App. 2007) (holding 



a county owed a duty of care to injured motorists after a bus driver exited his bus with 

the   keys   in   the   ignition   and   the   engine   running,   and   left   an   obviously   violent   and 

disturbed individual unsupervised on board). 



        25      See, e.g., Bendowski v. Quinnipiac College, No. CV 950248346S, 1996 



WL 219532, at *1-2 (Conn. Super. Apr. 8, 1996) (sexual assault victim invited her 

cousin over, described the assault to him, discussed the cousin assaulting her attacker, 

and gave the cousin information about where the attacker lived on campus); Molino v. 

Coluzzi, No. L-283-08, 2011 WL 1584338, at *1-2 (N.J. Super. App. Div. Apr. 28, 

2011) (defendant provoked a woman's upset and jealous boyfriend by telling him that 

his girlfriend was involved with another man, and then drove with him to the man's 

house); Strahin v. Cleavenger, 603 S.E.2d 197, 203-04 (W. Va. 2004) (plaintiff was shot 

after defendant invited him over to lay block despite knowing that a shooter was stalking 

the   defendant,   was   violently   angry,   had   vandalized   defendant's   property,   and   was 

armed). 



        26      See Strahin, 603 S.E.2d at 213 (Maynard, C.J., dissenting) ("This reasoning 



expands the scope of foreseeability beyond all bounds of common sense, fairness, and 

public policy.     As an example, under this rule, if I have had a conflict with another 

person     that  has  erupted    into  a  verbal   or  physical   altercation,   I  am   charged    with 

presuming that person will commit a criminal and violent act against me.                  Therefore, I 

arguably commit negligence by permitting a third party simply to ride in my car or visit 

my property."). 



                                                  -12-                                            6749
 


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

                2.	     If  302B is not controlling, we decline to impose a duty of our 

                        own accord. 

                If  302B does not control, we may impose a duty of our own accord.27  We 



decline to do so here.  The process of finding a duty is simply "an attempt to determine 



whether it would be fair and equitable to require an individual to act, or to refrain from 

acting, in a specified manner so as to avoid undue risk of harm to third persons."28                   In 



D.S.W. v. Fairbanks North Star Borough School District, we identified several factors 

to guide this inquiry.29     Of these, foreseeability of harm is the most important, followed 



closely by the burden on the defendant and the consequences to the community:                      there 

can be no duty where the harm is unforeseeable,30 but foreseeability alone is insufficient 



to establish a duty if the burden of taking care or the effect on society is too harsh.31 



        27      See   Estate   of   Mickelsen   ex   rel.   Mickelsen   v.   North-Wend   Foods,   Inc., 



274 P.3d 1193, 1199 (Alaska 2012) (stating rule that courts should look first to statute, 

then to precedent, and then to public policy to determine if a duty of care exists). 



        28	     Busby v. Municipality of Anchorage , 741 P.2d 230, 233 (Alaska 1987). 



        29      628 P.2d 554, 555 (Alaska 1981).           These factors are the foreseeability of 



harm   to   the   plaintiff,   the   degree   of   certainty   that   the   plaintiff   suffered  injury,   the 

closeness of the connection between the defendant's conduct and the injury suffered, the 

moral blame attached to the defendant's conduct, the policy of preventing future harm, 

the   extent   of   the   burden   to   the   defendant   and   consequences   to   the   community   of 

imposing a duty to exercise care with resulting liability for breach, and the availability, 

cost, and prevalence of insurance for the risk involved. 



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



Servs., 4 P.3d 326, 333 (Alaska 2000); Div. of Corr., Dep't of Health & Soc. Servs. v. 

Neakok , 721 P.2d 1121, 1127 (Alaska 1986), overruled on other grounds by State, Dep't 

of Corr. v. Cowles, 151 P.3d 353 (Alaska 2006); State v. Guinn, 555 P.2d 530, 536 

(Alaska 1976). 



        31      See Kooly v. State, 958 P.2d 1106, 1108 (Alaska 1998) (declining to impose 



                                                                                         (continued...) 



                                                  -13-	                                            6749
 


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

                       a.     Jeffrey's violence was not foreseeable. 

               Foreseeability is the most important D.S.W.  factor,32       so we must decide 



whether Jeffrey's violent rampage was a foreseeable result of Greenway's provocative 



dance.  Hurn argues that foreseeability is a question of fact more fit for jury than judge. 

But the question of duty is a matter of law.33       And summary judgment is appropriate 



where the only reasonable inference from the undisputed facts is that the harm was not 

foreseeable.34 



               Hurn also argues that Jeffrey's precise acts need not have been foreseeable. 



This is true.  We have held that "foreseeability is a broad concept and does not require 

that the precise harm in a given case be predictable."35        Instead, the manifested harm 



"need only be one of the cluster of harms in a generally foreseeable category."36  But this 



        31(...continued) 



liability despite the fact that harm was foreseeable because the burden on the defendant 

and the consequences to the community were too harsh); Schumacher v. City & Borough 

of Yakutat, 946 P.2d 1255, 1257 (Alaska 1997) (same); see also  Trapp v. State, Office 

of Pub. Advocacy, 112 P.3d 668, 675 (Alaska 2005) (ceasing examination of the D.S.W. 

factors   and   declining  to  impose   a  duty  after  determining    that  "there  would   be  a 

significant 'burden to the defendant and consequences to the community' if we imposed 

an extra-statutory duty of care"). 



        32     See State v. Sandsness, 72 P.3d 299, 305 (Alaska 2003); Karen L. v. State, 



Dep't of Health & Soc. Servs., Div. of Family & Youth Servs. , 953 P.2d 871, 875 (Alaska 

1998) (citing R.E. v. State, 878 P.2d 1341, 1346 (Alaska 1994)). 



        33     See Sandsness, 72 P.3d at 301. 



        34     See Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199, 



1203 (Alaska 1998). 



        35     P.G., 4 P.3d at 331 n.11. 



        36     Winschel v. Brown, 171 P.3d 142, 147 (Alaska 2007) (quoting DAN  B. 



                                                                                  (continued...) 



                                              -14-                                          6749
 


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

theoretical   category   of   harms   must   be   sufficiently   related   to   the   actual   injury   that 



occurred.  It is not enough that Greenway could foresee Jeffrey's anger; the question is 



whether Greenway could foresee his indiscriminate armed attack. 



                And this does not answer the more fundamental question of what it means 



for   a   harm   or   category   of   harms   to   be   "foreseeable"   at   all. In   the   past   we   have 



acknowledged that the foreseeability inquiry has as much to do with public policy as the 



ability to predict the future: "foreseeability is a question of the fundamental policy of the 

law, as to whether the defendant's responsibility should extend to such results."37                    We 



have also adopted a more practical test:          "[t]he actor's conduct may be held not to be a 



legal cause of harm to another where after the event and looking back from the harm to 



the actor's negligent conduct, it appears to the court highly extraordinary that it should 

have brought about the harm."38          As we have noted above, the Restatement tells us that 



third-party crimes are rarely foreseeable.39 



                 We   conclude   that   Jeffrey's   shooting   spree   was   a   highly   extraordinary 



response to Greenway's dance.   Hurn argues that foreseeability can be inferred because 



Greenway knew that Jeffrey had threatened Carrie with physical harm in the past; Carrie 



was afraid that Jeffrey would kill her; Jeffrey was a jealous man; on the night of the 



        36(...continued) 



DOBBS ,  THE     LAW     OF  TORTS     336   (2001   &   Supp.   2007))   (internal   quotation   marks 

omitted). 



        37      P.G.,   4   P.3d   at   334   (quoting   W. PAGE    KEETON       ET  AL ., PROSSER     AND 



KEETON ON THE LAW OF  TORTS  43, at 281 (5th ed. 1984)) (internal quotation marks 

omitted). 



        38      Id. (quoting RESTATEMENT (SECOND) OF TORTS  435(2) (1965)) (emphasis 



in original). 



        39       RESTATEMENT (SECOND) OF TORTS  302B cmt. d. 



                                                   -15-                                              6749
 


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

murder Jeffrey sometimes wore a "stone cold expression" that betrayed no emotion; and 



prior to Greenway's dance, he had issued a veiled threat:             "What would you girls do if 



someone came in that door right now, after you?" 



                We read these facts in the light most favorable to the plaintiff, but as a 



matter of law they cannot overcome the presumption that the criminal acts of third parties 



are unforeseeable.      It is not clear that homicide could ever be the foreseeable result of 



mere teasing, and Greenway could not foresee such violence here. 



                        b.	     The      burden      of  the    duty    on    Greenway        and    the 

                                consequences to the community are too harsh. 



                The burden the proposed duty would place on Greenway and society also 



weighs against its imposition.  Hurn asks us to reduce domestic violence in this state by 



imposing a duty to "refrain from teasing or bullying someone known to be potentially 



violent."   But we refuse to give victims the duty to prevent their own abuse and then hold 

them liable when they fail.       The record suggests that Jeffrey was an abusive husband.40 



And   if   Greenway   is   liable   for   taunting   an   abusive   husband,   it   follows   that   victims 



themselves may be liable for provoking their partners if the result is harm to a third party. 



Some courts have already been asked to hold a recipient of domestic abuse liable under 



 302B for the crimes of her partner.   The Iowa Supreme Court held that a woman was 



not liable for the actions of her jealous and abusive boyfriend after he assaulted another 

man she brought home.41         These requests are particularly troubling where, as here, the 



        40      Besides murdering his wife, Jeffrey verbally abused Carrie and threatened 



to beat her, and Carrie was afraid for her life.  On at least one occasion Carrie spent the 

night sleeping on a friend's floor because she was afraid of her husband.  The record is 

silent as to physical abuse, but it is undisputed that their relationship was marked by 

threats and fear. 



        41      See Fiala v. Rains, 519 N.W.2d 386 (Iowa 1994); cf. Wilkins v. Siplin, 13 



                                                                                        (continued...) 



                                                  -16-	                                           6749
 


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

"provocation" is an act of resistance.42     We reject the idea that victims are responsible for 



the violence they endure in the home, and we will not blame them for their otherwise 



reasonable actions simply because those actions foreseeably result in violence. 



V.      CONCLUSION 



                Simone Greenway had no duty to protect Carrie Randall-Evans or control 



Jeffrey Evans because she did not share a special relationship with either of them.  Nor 



did Greenway have a duty to refrain from provoking Jeffrey by dancing with his wife. 



We   therefore   AFFIRM   the   superior   court's   grant   of summary   judgment   in   favor   of 



Simone Greenway. 



        41(...continued) 



Cal.   Rptr. 2d 634 (Cal. App. 1992) (holding that a wife could be liable for inviting a co- 

worker to a remote cabin where he was attacked by her husband) (depublished by order 

of the California Supreme Court). 



        42      The   sparring,   dancing,   and   teasing   at   issue   were   a   direct   response   to 



Jeffrey's not-so-veiled threat to Carrie and Greenway's physical safety:  "[W]hat would 

you girls do if somebody came in that door right now, after you?"                In response, Carrie 

and Greenway laughed, gave each other a high five, said "[W]e'd kick his ass," and 

started sparring to demonstrate how they would repel the intruder.                 While they were 

sparring   and   dancing   and   laughing   at   Jeffrey,   Greenway   was   expressing   to   Carrie: 

"[T]his is my domain, you don't have to be afraid here." 



                                                 -17-                                              6749 

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