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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Winschel v. Brown (11/09/2007) sp-6194
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| SEAN WINSCHEL, | ) |
| ) Supreme Court No. S- 12378 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-05-1525 CI | |
| v. | ) |
| ) | |
| BRIAN R. BROWN, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6194 November 9, 2007 |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Randy M. Olsen,
Judge.
Appearances: Kenneth P. Ringstad, Paskvan &
Ringstad, P.C., Fairbanks, for Appellant.
Kim S. Stone, McConahy, Zimmerman & Wallace,
Fairbanks, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Sean Winschel appeals a summary judgment ruling
dismissing his negligence suit against Brian R. Brown. Winschel
suffered a head injury while driving his four-wheel ATV when he
struck a light pole suspended over a bike path that runs along
the Johansen Expressway in Fairbanks. The state-owned light pole
had fallen across the path approximately ninety minutes earlier
when Brown lost control of his vehicle on the expressway and
struck the base of the pole. Winschel sued Brown for negligence,
and both parties moved for summary judgment. The superior court
granted summary judgment to Brown, concluding that because the
circumstances of Winschels accident were not foreseeable, Brown
owed no duty to Winschel and could not have been the proximate
cause of his injury. Because Winschel has presented sufficient
evidence to raise issues of material fact regarding duty and
causation, we reverse and remand for further proceedings.
II. FACTS AND PROCEEDINGS
A. Facts
On October 23, 2004, at around 12:30 p.m., Brian R.
Brown was driving his GMC Suburban west on the Johansen
Expressway in Fairbanks. As he entered a curve about a quarter
mile west of College Road, he came upon a two-vehicle accident on
the left shoulder. Although the vehicles had been moved from the
main portion of the road, flares lit to warn drivers of the
collision had slid or rolled down the icy, banked pavement into
Browns lane of travel. As he attempted to shift lanes, Brown
lost control of his vehicle, spun around, and struck the base of
the state-owned pole, causing it to topple across a nearby chain-
link fence.1 Held up by the fence, the pole extended across a
snow-covered bike and pedestrian path that ran parallel to the
expressway at that point.
The collision with the light pole dented Browns bumper,
but he was not injured. Fairbanks Police Officer Peyton
Merideth, who was already at the scene of the earlier accident,
came over to assist Brown. The officer warned Brown that the
state Department of Transportation (DOT) might bill him for the
cost of repairing the pole and would send a letter regarding any
costs.2 According to Brown, the officer took his identifying
information and instructed him to leave the expressway.3 Brown
then returned to his vehicle and drove away. Officer Merideth
wrote in his collision report that he believed Brown was driving
too fast for the road conditions, though he did not cite Brown
due to the confusing road flare pattern in the roadway.
While at the accident scene, Officer Merideth also
reported the downed pole to Fairbanks Police Department dispatch,
which was responsible for notifying the DOT. He told police
dispatch that a light pole had been knocked over, that there
werent any live wires, and that the pole was not in the roadway.
The officer did not notice that the pole was across the bike
path, so he did not mention it in his communication to dispatch.
The record does not reflect what steps police dispatch took to
notify the state DOT.
Approximately ninety minutes later, at around 2 p.m.,
Sean Winschel left his home off Danby Street to stop by a nearby
U-Haul business where he worked. To reach his workplace which
was less than one mile from his home Winschel decided to drive
his Honda four-wheel ATV on the bike path that runs along the
expressway between Danby Street and College Road.
Winschel, who was not wearing a helmet, entered the
path heading east near the crest of a hill. Approximately
seventy yards from this point, the path curved to the left at the
bottom of the hill. As he drove down the hill toward the downed
pole, Winschel was traveling in third gear at an estimated twenty-
five miles per hour. Winschel saw the light pole at the last
second. He tried ducking to avoid the pole, but it was too late.
Winschels head struck the pole, fracturing his skull. After
being treated at the scene by paramedics, Winschel was taken to
Fairbanks Memorial Hospital and later flown to Anchorage for
medical care. Shortly after Winschels accident, a state DOT
repair crew arrived at the accident site.
B. Procedural History
On May 2, 2005, Winschel sued Brown, alleging that his
injuries were caused by Browns negligence in losing control of
his Suburban on the expressway and failing to mark or remove the
downed pole. Both parties filed motions for summary judgment on
the issues of duty and causation. On June 9, 2006, Superior
Court Judge Randy M. Olsen ruled in Browns favor, concluding that
[b]ased on the unique facts of this case, including police
oversight of the accident scene and police direction to leave the
area after the police had notified DOT, Brown owed no duty to
Winschel and was not a proximate cause of the accident. On the
issue of proximate cause, the court concluded that Winschels own
illegal conduct was a superseding cause. In addition, the court
ruled that because of his illegal use of a motorized vehicle on
the bike path, Winschel was barred as a matter of public policy
from recovering damages. Winschel filed a motion for
reconsideration, which the court denied before entering a final
judgment in Browns favor. Winschel appeals the superior courts
grant of summary judgment to Brown.
III. STANDARD OF REVIEW
We independently review orders granting summary
judgment by considering the entire record in the light most
favorable to the non-moving party to determine whether it reveals
any genuine issues of material fact.4 A party moving for summary
judgment must make a prima facie showing that there is no genuine
issue of material fact and must demonstrate that the movant is
entitled to judgment as a matter of law.5 To defeat summary
judgment, the opposing party may in turn offer admissible
evidence reasonably tending to dispute the moving partys
evidence, thus establishing that a genuine issue of material fact
remains to be tried.6
IV. DISCUSSION
A. Duty
Winschel argues that the superior court erred in
granting summary judgment to Brown on the issue of duty. He
contends that, as a driver on the expressway, Brown owed a duty
of reasonable care to users of the adjacent bike path based on
general principles of negligence, Alaska traffic regulations, and
the public policy factors set forth in D.S.W. v. Fairbanks North
Star Borough School District.7
A fundamental tenet of negligence law is that a
defendant owes a duty of due care to all persons who are
foreseeably endangered by his conduct, with respect to all risks
which make the conduct unreasonably dangerous.8 In the context
of determining a duty, this court has taken an expansive view of
foreseeability. We have made it clear that foreseeability is a
broad concept and does not require that the precise harm in a
given case be predictable.9
In addition, our cases have drawn a distinction between
questions concerning the existence of a duty and those related to
the scope of an existing duty.10 We have stated that summary
judgment is appropriate for the first type of inquiry that is,
where the only reasonable inference from the undisputed facts is
that one party owed another no duty at all or owed a duty clearly
and vastly narrower in scope than the one that the other party
asserts.11 Conversely, summary judgment on questions of duty is
disfavored where the issue is one of the precise scope of that
duty, or of whether particular conduct did or did not breach it.12
In granting Browns motion for summary judgment on the
issue of duty, the superior court reasoned that Winschels
accident was not foreseeable because of Winschels illegal use of
an ATV on the bike path. As the court stated, it was not
foreseeable that in a small window of time, an illegal user of
the bike path, proceeding at a speed far in excess of the
standard of the intended use, would come upon the downed pole.
Along the same line, the court invoked the general rule that
illegal acts will break a chain of causation, suggesting that the
rule was particularly apt in this case because it would be poor
public policy to require an individual who committed an act of
negligence to have to assume and anticipate additional unlawful
conduct by third parties.
The superior court also acknowledged that after
creating the hazard, Brown had a duty to take steps to have it
removed. But the court concluded that Brown terminated this duty
through his contact with the Fairbanks police who, in turn,
notified the state DOT. As the court saw it, there is no moral
blame to be attached to Browns conduct after DOT was notified and
he was directed to leave the area.
In his original complaint and his opposition to Browns
motion for summary judgment, Winschel argued that Brown had a
duty to exercise reasonable care not only after hitting the light
pole, but before the collision as well. Winschel further
asserted that Browns duty extended to him because a reasonably
probable and foreseeable consequence of Browns act of knocking
over the light pole . . . is that someone will hit the light
pole with their head. Winschel renews these arguments on appeal,
adding that the superior court failed to recognize that he raised
genuine issues of material fact as to whether Brown breached his
duty by driving too fast on the expressway given the road and
weather conditions.
We agree with Winschel that summary judgment on the
question of duty was inappropriate. As the superior court
correctly recognized, the critical inquiry is whether Winschels
injury was within the scope of foreseeable risks from Browns
conduct. The courts analysis, however, focused only on Browns
actions after he struck the light pole that is, whether he took
any steps to notify or warn others of the hazard. In doing so,
the court overlooked Winschels contention that Brown had an
initial duty to use reasonable care in driving on the expressway.13
Winschel reasonably asserts that this duty required Brown to
drive at a speed appropriate for road conditions, maintain
control of his vehicle, and keep his vehicle within a single lane
of traffic.
In addition to overlooking the first part of Browns
duty, the superior court applied an overly narrow standard in
assessing the foreseeability of harm to Winschel. For example,
the court emphasized the illegality of Winschels use of the four-
wheeler, declaring it unforeseeable that in a small window of
time, an illegal user of the bike path, proceeding at a speed far
in excess of the standard of the intended use, would come upon
the downed pole. This approach is contrary to our teaching that
foreseeability does not require that the precise harm in a given
case be predictable.14 Rather, as Dan B. Dobbs states in The Law
of Torts, the harm need only be one of the cluster of harms in a
generally foreseeable category.15 To illustrate this concept,
Dobbs offers the following illustration:
[If] a speeding driver crashes into your
living room, the fact that a reasonable
person would not have specifically recognized
a risk of harm to living room furniture will
not assist the driver to avoid liability. It
is one of the cluster of harms in a generally
foreseeable category, and that is enough.[16]
Here, the generally foreseeable category of harms from
the toppled pole included injuries to users of the bike path
because of the paths close proximity to the expressway near the
downed pole. Thus, if Browns negligence led to his collision
with the pole, then the duty of care he owed as a driver extended
to users of the bike path near the downed pole. That Winschels
unlawful use of the ATV on the path may not have been precisely
foreseeable is irrelevant; his use of the path puts him in the
same general category as lawful users of the path placed at risk
by a speeding or out-of-control driver. In other words,
Winschels violation of the regulation banning motorized use of
the bike path does not negate the foreseeability of the harm that
occurred.
Beyond establishing that Brown owed a general duty to
users of the bike path, Winschel raised issues of material fact
regarding the breach of that duty in opposition to Browns motion
for summary judgment. Specifically, Winschel cited Officer
Merideths deposition testimony that Brown was driving too fast
for road conditions, as well as Browns own admission that he lost
control of his vehicle while attempting to switch lanes to avoid
a disabled car in the expressways left lane. These factual
issues are enough to establish a cause of action for negligence,
precluding summary judgment for Brown on the issues of duty and
breach.
Finally, we address the superior courts determination
that the involvement of Fairbanks police and the state DOT in
responding to Browns accident terminated any duty that Brown
might have owed Winschel. As noted above, the superior court
appears to have based its decision on the premise that the only
duty Brown owed Winschel (and other users of the bike path) was
to take steps to have the hazard removed. As we have explained,
this premise is incomplete because it overlooks Browns duty to
use reasonable care in driving on the icy expressway so that he
would avoid striking the light pole. Even if Brown did act with
reasonable care after the collision, this would not negate the
factual issues raised by Winschel as to whether Brown breached
the duty he owed as a driver on the expressway.
Likewise, the superior courts reliance on the general
rule that illegal acts will break a chain of causation fails to
support its determination that Brown owed no duty to Winschel.
The courts rationale on this point appears to be based on one of
two theories: that Winschels own conduct was a superseding cause
of his injury, or that Winschels use of the ATV placed him
outside the scope of generally foreseeable risks and, thus, Brown
did not owe him a duty of care. Neither theory alters our
conclusion that summary judgment should not have been granted on
the question of duty. As we explain in greater detail below, the
blameworthiness of Winschels own conduct should be evaluated by
the trier of fact under Alaskas comparative fault regime; his
conduct should not constitute a complete bar on recovery.
Alternatively, if the court, in referring to Winschels illegal
acts, meant that his conduct was not foreseeable and thus no duty
was owed, we refer again to our well-established rule that
foreseeability is to be defined broadly rather than narrowly.17
Because we find that Winschel owed Brown a duty of care
under general principles of negligence, we reverse the grant of
summary judgment on the issue of duty.18
B. Causation
Winschel contends that the superior court also erred in
granting summary judgment to Brown on the issue of causation. As
with the question of duty, he argues that because he raised
issues of material fact, the question of causation should be left
to the trier of fact.
Alaska follows the substantial factor test of
causation, which generally requires the plaintiff to show that
the accident would not have happened but for the defendants
negligence and that the negligent act was so important in
bringing about the injury that reasonable individuals would
regard it as a cause and attach responsibility to it.19 We have
previously recognized that determinations of proximate cause
usually involve questions of fact within the province of the
jury;20 proximate cause becomes a matter of law only where
reasonable minds cannot differ.21
We have also recognized that a superseding cause can
relieve the defendant of liability even if the defendant
committed a negligent act that proximately caused an injury.22 To
determine whether conduct amounts to a superseding cause, we rely
on the approach set out in the Restatement (Second) of Torts.23
But we have emphasized that, under the Restatements approach, an
action of a third person which intervenes to injure the plaintiff
will shield a negligent defendant only where after the event and
looking back from the harm to the actors negligent conduct, it
appears . . . highly extraordinary that it should have brought
about the harm.24
Here, the but for element of causation is not in
dispute. Winschels accident would not have occurred if Brown had
not lost control of his vehicle and struck the light pole.
Rather, the questions of causation disputed here are whether
Browns actions were a substantial factor in causing Winschels
injuries and whether Winschels own conduct amounted to a
superseding cause that broke the causal link to Brown.
In granting summary judgment to Brown, the superior
court concluded that Winschels own conduct driving the four-
wheeler on the bike path at an estimated speed of twenty-five
miles per hour was an unforeseeable, superseding cause that
broke the chain of causation and relieved Brown of any liability.
While the court ruled that [t]he proximate cause of Winschels
accident was his own illegal conduct, the court also suggested,
as indicated above, that the intervention of Fairbanks police
firmly severed any causal link between Browns conduct and
Winschels injury.
We disagree. Based on the evidence presented by
Winschel, we conclude that the issue of proximate cause should
have been left to the jury. Specifically, Winschel raised issues
of material fact as to whether Brown was traveling at an
appropriate speed for road conditions and whether the pole was
visible against overcast skies. Because of this, when the
evidence is viewed in the light most favorable to Winschel,
reasonable individuals could regard Browns conduct as a cause of
Winschels injury and attach responsibility to it.
Moreover, Winschels own conduct did not rise to the
level of a superseding cause; nor do we believe that Winschels
actions should, as a matter of law, be regarded as the sole
proximate cause of his injuries. As with the question of duty,
proximate cause requires only that the general kind of harm be
foreseeable for an actors conduct to be considered the proximate
cause of the plaintiffs injuries.25 Here, given the closeness of
Browns conduct, both in time and location, and the proximity of
the expressway to the bike path, reasonable persons could attach
liability for Winschels injury to Browns actions and could also
find that it was not highly extraordinary that those actions
brought about the harm.26
Similarly, we reject the finding that the involvement
of Fairbanks police and the state DOT severed any causal
connection between Browns actions and Winschels injury. Nor can
the agencies actions be considered a superseding cause. Simply
put, their actions did not make it highly extraordinary that
Browns alleged negligence in losing control of his car and
striking the light pole could lead to an injury on the bike path.
This conclusion is supported by the Restatement factors: the
intervention of the agencies did not bring about a harm different
in kind from what would otherwise have resulted from Browns
alleged negligence; nor did their involvement operat[e]
independently of any situation created by the actors [alleged]
negligence.27
For these reasons, we reverse the rulings on proximate
cause and superseding causation.
C. Illegality of Winschels Conduct
The superior court also ruled that Winschel was barred
from recovering damages because at the time of his injury he was
violating a state regulation that bans motorized traffic on bike
paths.28 Although the court believed that Winschels illegal use
of the bike path affected the issue of duty by making his
injuries unforeseeable, it also viewed the violation as a
superseding cause, referring to [t]he general rule that illegal
acts will break a chain of causation. In addition, the court
seemed to view Winschels violation as precluding him from
recovering damages as a matter of public policy under the
principle that parties are not generally allowed to recover as a
result of their own wrongdoing. The court recognized that the
legislature had codified this policy in AS 09.65.210, which
applies only to plaintiffs injured while committing felonies or
driving under the influence of alcohol or controlled substances29
offenses that have no application here. But the court also noted
that, in Ardinger v. Hummell,30 we had indicated a willingness to
extend the same underlying principle to crimes other than those
listed in AS 09.65.210. Relying on Ardinger, the court reasoned
that the policy against allowing parties to recover as a result
of their own wrongdoing barred Winschels claim because his injury
was precisely the type of harm that the regulation he violated
sought to prevent. Winschel challenges this ruling, insisting
that under Alaska law, comparative fault does not bar recovery.
We agree.31
The superior court relied on a mistaken view of our
ruling in Ardinger. There, we began by describing the well[-
]established rule that one who violates a criminal statute is
not deprived of all protection against the torts of others. 32 We
then recognized
a public policy exception to this rule: [I]f
the injured person has violated a statute
designed to prevent a certain type of risk,
he is barred from recovery for harm caused by
violation of the statute if, but only if, the
harm resulted from a risk of the type against
which the statute was intended to give
protection.[33]
Yet we went on to emphasize that this public policy exception is
narrow:
[I]n those cases in which recovery is barred
on public policy grounds, the result mirrors
the outcome of the abandoned contributory
negligence rule: Responsibility is not
necessarily allocated in proportion to fault,
and one party is exempted from liability
altogether. It is therefore only with
considerable prudence that we invoke the
public policy bar against recovery.
Accordingly, we have applied the public
policy rationale for barring recovery only in
cases involving serious criminal conduct that
intentionally threatened the safety of
others, such as homicide, rape, and arson.[34]
Ardinger involved an unlicensed and underage driver who
was killed in a single-vehicle collision that occurred when he
drove a car without the owners knowledge or permission, in
violation of Alaskas joyriding statute; the boys mother brought a
wrongful death action against a fourteen-year-old friend of the
driver who had let the driver use her mothers car.35 In these
circumstances, we declined to apply the public policy exception
to bar the wrongful death claim, holding both that the violation
does not represent the level of serious criminal conduct
generally necessary to bar recovery and that
the harm . . . did not clearly result from a
risk of the type against which [the joyriding
statute] was intended to give protection.
That statutory provision . . . was designed
to prevent theft and the consequent harm to
property. The harm in this case was not
directly caused by the act of theft. The
causal nexus between [the drivers] violation
of the statute and his death is therefore
tenuous.[36]
Here, as in Ardinger, Alaskas statute adopting the
public policy exception AS 09.65.210 does not bar Winschels
recovery because his violation of the bike-path regulation is not
covered by the statute. Nor can the policy-based exception
described in Ardinger apply. The regulation at issue here, which
prohibits driving a motorized vehicle on a bike path, does not
prohibit the kind of serious criminal conduct described by
Ardinger as a prerequisite for the exception conduct that
intentionally threatened the safety of others, such as homicide,
rape, and arson.37
Neither does the harm at issue in this case clearly
result from a risk of the type against which [the bike-path
regulation] was intended to give protection. 38 The regulation
prohibiting motorized use of bike paths is primarily designed to
protect non-motorized bike-path users from harm, not to protect
motorized users from hurting themselves. Moreover, under
Winschels version of the incident which we must accept as true
in reviewing the challenged summary judgment ruling the
circumstances that led to the injury do not seem uniquely
attributable to his use of a motorized vehicle. As Winschel
described it, the accident occurred without warning or
opportunity to stop as he was rounding a blind curve at the
bottom of a hill. Winschel was driving an ATV that had five
gears; he was in third gear, was not speeding, and had just
entered the bike path, which ATVs frequently used during the
winter. Under these circumstances the risk arising from
Winschels use of the ATV seems roughly comparable to the risk
that a bicyclist, skateboarder, or wintertime skier might face on
the same path. As in Ardinger, the nexus between the violation
and the harm at issue is therefore tenuous.39
For these reasons, we conclude that Winschels violation
of the bike-path regulation does not bar his claim.40 Although
Winschels violation may well have significant weight in assessing
Winschels proportionate share of the fault under Alaskas
comparative negligence regime,41 it does not, as a matter of law,
disqualify Winschel from asserting his claim.42
V. CONCLUSION
For these reasons, we REVERSE the decision granting
summary judgment to Brown and REMAND for further proceedings.
_______________________________
1 The light pole was a breakaway pole designed to knock
over easily if hit.
2 The Alaska DOT is responsible for maintaining both the
light pole in question and the Johansen Expressway in Fairbanks.
According to Officer Merideth, the state is responsible for
deciding whether to repair the damage, or when the repair work
will occur.
3 Officer Merideth stated in his affidavit that he did
not remember telling Brown to leave the scene, or that he might
have to pay for the damage to the pole. But he stated that such
advice would not be inconsistent with typical practice and
protocol of [the Fairbanks Police Department].
4 Olson v. Teck Cominco Alaska, Inc., 144 P.3d 459, 463
(Alaska 2006).
5 See Alaska R. Civ. P. 56(c).
6 See Olson, 144 P.3d at 463.
7 D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628
P.2d 554, 555 (Alaska 1981).
8 Div. of Corr. v. Neakok, 721 P.2d 1121, 1125-26 (Alaska
1986) (citing Rodriguez v. Bethlehem Steel Corp., 525 P.2d 669,
680 (Cal. 1974)).
9 P.G. & R.G. v. State, Dept of Health & Human Servs., 4
P.3d 326, 332 n.11 (Alaska 2000).
10 Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 975
(Alaska 2005).
11 Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell,
956 P.2d 1199, 1203-04 (Alaska 1998); see also Neakok, 721 P.2d
at 1127 n.7 (While a specific case-by-case determination of
foreseeability and causation lies within the province of a jury,
the existence of a duty is a question of law.).
12 Arctic Tug, 956 P.2d at 1203.
13 By knocking over the light pole so that it obstructed
the bike path, Brown activated a duty of due care that required
him to take reasonable steps to protect others from being harmed
by the hazard, and this duty applied regardless of whether Brown
acted negligently in hitting the pole. See Restatement (Second)
of Torts 321 (1965) (If the actor does an act, and subsequently
realizes or should realize that it has created an unreasonable
risk of causing physical harm to another, he is under a duty to
exercise reasonable care to prevent the risk from taking
effect.).
14 P.G. & R.G., 4 P.3d at 332 n.11.
15 Dan B. Dobbs, The Law of Torts 336 (2001 & Supp. 2007).
16 Id. at 335-36.
17 See P.G. & R.G., 4 P.3d at 334 ([F]oreseeability does
not imply an ability to predict precise actions or injuries: When
the risk created causes damage in fact, insistence that the
precise details of the intervening cause be foreseeable would
subvert the purpose of that rule of law. (quoting W. Page Keeton
et al., Prosser and Keeton on the Law of Torts 43, at 280-81
(5th ed. 1984))).
18 Our ruling makes it unnecessary to reach Winschels
argument that the public policy factors in D.S.W. v. Fairbanks
North Star Borough School District support imposing a duty on
Brown.
19 Vincent by Staton v. Fairbanks Meml Hosp., 862 P.2d
847, 851 (Alaska 1993).
20 P.G. & R.G., 4 P.3d at 334; Turnbull v. LaRose, 702
P.2d 1331, 1336 (Alaska 1985).
21 P.G. & R.G., 4 P.3d at 334.
22 See Sharp v. Fairbanks N. Star Borough, 569 P.2d 178,
182 (Alaska 1977).
23 Restatement (Second) of Torts 435.
24 Griffith v. Taylor, 12 P.3d 1163, 1168 (Alaska 2000)
(emphasis and alteration in original) (quoting Williford v. L.J.
Carr Invs., Inc., 783 P.2d 235, 237 (Alaska 1989)); see
Restatement (Second) of Torts 435 cmt. c.
The Restatement also lists specific considerations for
determining whether an intervening force amounts to a superseding
cause. These considerations include (1) whether the intervention
brings about harm different in kind from that which would
otherwise have resulted from the actors negligence; (2) whether
the intervening force is operating independently of any situation
created by the actors negligence, or, on the other hand, is or is
not a normal result of such a situation; (3) whether the
operation of the intervening force is due to a third persons act
or to his failure to act; (4) whether the intervening force is
due to an act of a third person which is wrongful toward the
other and as such subjects the third person to liability to him;
and (5) the degree of culpability of a wrongful act of a third
person which sets the intervening force in motion. Restatement
(Second) of Torts 442.
25 Dobbs, supra note 15, at 466.
26 Griffith, 12 P.3d at 1168.
27 See Restatement (Second) of Torts 442.
28 See 13 Alaska Administrative Code (AAC) 02.455(g) (No
snowmobile or other off-highway vehicle may cross or travel on a
sidewalk, a location intended for pedestrian or other
nonmotorized traffic, an alley, or a vehicular way or area which
is not open to snowmobile or off-highway vehicle operation . . .
.).
29 AS 09.65.210 provides in relevant part that a person
who suffers personal injury or death . . . may not recovery
damages . . . if the injury or death occurred while the person
was . . . engaged in the commission of a felony . . . [or]
operating a vehicle, aircraft, or watercraft while under the
influence of intoxicating liquor or any controlled substance.
30 Ardinger v. Hummell, 982 P.2d 727 (Alaska 1999).
31 See Smith v. Ingersoll-Rand Co., 14 P.3d 990, 992-93
(Alaska 2000) (recognizing that, under AS 09.17.060, Alaska
relies on a system of comparative fault similar to the doctrine
of comparative negligence).
32 Ardinger, 982 P.2d at 735 (quoting W. Page Keeton et
al., Prosser and Keeton on the Law of Torts 36, at 232 (5th
ed.1984)).
33 Id. (alteration in original) (quoting Restatement
(Second) of Torts 889 cmt. b).
34 Id. at 736 (citations omitted).
35 Id. at 729-30.
36 Id. at 736-37 (quoting Restatement (Second) of Torts
889 cmt. b).
37 Id. at 736.
38 Id. (quoting Restatement (Second) of Torts 889 cmt.
b).
39 Id. at 737.
40 Although Brown claims that Winschel waived this point
by failing to include it in his points on appeal or argue it in
his opening brief, we find no merit to this claim. Winschels
points on appeal asserted general challenges to the trial courts
summary judgment order and its order denying reconsideration,
thus giving Brown sufficient notice that all aspects of the
courts ruling were at issue. See, e.g., Native Vill. of Eklutna
v. Bd. of Adjustment, 995 P.2d 641, 646 (Alaska 2000). The
superior courts ruling on summary judgment discussed the
exception barring claims based on illegal conduct as an issue
affecting both duty and proximate causation; Winschels opening
brief generally addressed both issues, seeking to establish that
he had raised triable issues of fact sufficient to avoid summary
judgment. After Browns brief then focused on Winschels violation
as an independent bar to recovery, Winschel replied to Browns
argument. In denying Browns claim of waiver, Winschel insists
that since his briefing established a prima facie case precluding
summary judgment, Brown had the burden of asserting his theory of
superseding causation, thus making it appropriate for Winschel to
reply after Brown argued the point. Although it certainly would
have been better practice for Winschel to raise these arguments
in his opening brief, his explanation for failing to raise them
earlier is not wholly implausible. More important, when Winschel
later did argue the point in his reply, his arguments did not
depend on new facts, were closely related to other arguments at
trial and in his opening brief, and could have been gleaned from
the pleadings; under these circumstances, we decline to view the
issue as having been waived. See, e.g., State Farm Auto Ins. Co.
v. Raymer, 977 P.2d 706, 711 (Alaska 1999).
41 See AS 09.17.060 (codifying comparative negligence).
42 As Dobbs confirms in his treatise, the fact that the
plaintiff is guilty of contributory negligence per se in
violating a statute shows negligence but it does not show how
much, so a comparison of the plaintiffs per se fault and the
defendants negligence is still appropriate. Dobbs, supra note
15, at 526 n.18.
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