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V. Principles of Negligence, Liability

1. Elements of Negligence
2. Reasonable Person Standard
3. Duty of Care of Minors
4. Res Ipsa Loquitur
5. Negligence Per Se
6. Products Liability
   1. Design Defect
   2. Manufacturing Defec
   3. Failure to Warn
   4. Breach of Warranty
7. Successor Liability
8. Landowner Liability
9. Ultrahazardous Activity
10. Causation

A. Elements of Negligence

To establish negligence, a party must prove duty, breach of duty, causation, and harm. Silvers v. Silvers, 999 P.2d 786, 793 (Alaska 2000). The elements of a negligence claim in the medical malpractice setting are set forth in AS 09.55.540(a). See Marsingill v. O'Malley, 55 P.3d 495, 499 (Alaska 2003).

B. Reasonable Person Standard

The Alaska Supreme Court has held that the jury is required to weigh actions of persons charged with negligence against the standard of conduct of a reasonable person in the same circumstances. Lyons v. Mid Night Sun Transportation Services, Inc., 928 P.2d 1202 (Alaska 1996); Wilson v. Sibert, 535 P.2d 1034, 1036-37 (Alaska 1975). This obligation to act reasonably may create liability for inaction if a reasonably prudent person would have foreseen the probability of harm resulting from the failure to act. State v. Guinn, 555 P.2d 530, 536 (Alaska 1976).

Common carriers are held to a higher standard of care. Barrett v. Era Aviation, 996 P.2d 101 (Alaska 2000); Widmyer v. Southeast Skyways, Inc., 584 P.2d 1 (Alaska 1978). They are required to exercise the highest degree of care for the safety of their passengers. Id.

C. Duty of Care of Minors

The general rule is that minors are held to the same standard of care as a person of like age, intelligence and experience under similar circumstances. This standard does not apply where a child is engaged in activities normally only undertaken by adults, such as driving a vehicle, in which case the minor is held to an adult standard of care. Ardinger v. Hummell, 982 P.2d 727 (Alaska 1999).

D. Res Ipsa Loquitur

The doctrine of res ipsa loquitur "is a bridge, dispensing with the requirement that a plaintiff specifically prove breach of duty, once that duty and proximate cause have been established," and applies only when an accident ordinarily does not occur in the absence of negligence. State Farm Fire & Cas. Co. v. Municipality of Anchorage, 788 P.2d 726, 730 (Alaska 1990) ; Widmyer v. Southeast Skyways, Inc., 584 P.2d 1, 10 (Alaska 1978); Falconer v. Adams, 974 P.2d 406, 414 (Alaska 1999).

The doctrine of res ipsa loquitur permits, but does not compel, an inference of negligence from the circumstances of an injury. The doctrine should be applied when: (1) the accident is one which ordinarily does not occur in the absence of someone's negligence; (2) the agency or instrumentality is within the exclusive control of the defendant; and (3) the injurious condition or occurrence was not due to any voluntary action or contribution on the part of the plaintiff. Widmyer, 584 P.2d at 11 (footnote omitted).

By shifting the burden of production of evidence to the defendant without relieving the plaintiff of the burden of proof, the doctrine makes recovery possible where circumstances render proof of the defendant's specific act of negligence impracticable and the defendant is the party in the superior, if not the only, position to determine the cause of an accident. Ferrell v. Baxter, 484 P.2d 250, 258 (Alaska 1971). Uncontradicted proof of specific acts of negligence which completely explain the circumstances and cause of the accident renders the doctrine superfluous and inapplicable. Widmyer, 584 P.2d at 11-12; State Farm Fire & Cas. Co. v. Municipality of Anchorage, 788 P.2d 726, 730 (Alaska 1990).

E. Negligence Per Se

In Alaska, violation of a legislative enactment or administrative regulation may constitute negligence per se. McLinn v. Kodiak Electric Assn, Inc., 546 P.2d 1305 (Alaska 1976). Under the negligence per se doctrine, a court may adopt as the standard of conduct of a reasonable person the requirements of a regulation or statute whose purpose is to protect the class of persons to which the plaintiff belongs. The unexcused violation of such a statute is negligence in itself. Ferrell v. Baxter, 484 P.2d 250, 263-64 (Alaska 1971). In determining whether to give a negligence per se instruction, the trial court must first determine whether the conduct at issue lies within the ambit of the statute or regulation in question, by applying the four criteria set out in the Restatement (Second) of Torts § 286 (1965). Shanks v. Upjohn Co., 835 P.2d 1189, 1201 (Alaska 1992).

Substitution of an applicable law for the general duty of care is appropriate when the rule of conduct contained in the law is expressed in specific, concrete terms. Substitution is not appropriate when the law merely sets out a general or abstract standard of care. Bachner v. Rich, 554 P.2d 430, 441-42 (Alaska 1976). The Alaska court has adopted the standards of the Restatement (Second) of Torts § 288A for determining whether a violation of a statute is excused.

F. Products Liability

1. Design Defect
In Alaska, there is a two-prong test for finding defect in design cases. Under this test, a product is defective either if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner [consumer expectation test], or if the plaintiff proves that the product's design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweighed the risk of danger inherent in such design [risk benefit test]. General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1220 (Alaska 1998); Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979).

2. Manufacturing Defect
In Alaska, there is a manufacturing defect if the product differed from the manufacturer's intended result, or the product differed from other units of the same product line. Beck, 593 P.2d at 881.

3. Failure to Warn
A manufacturer has a duty to warn if the use of the product in a manner that is reasonably foreseeable by the defendant involves a substantial danger that would not be readily recognized by the ordinary user of the product and the manufacturer fails to provide adequate warning of such danger. Prince v. Parachutes, Inc., 685 P.2d 83 (Alaska 1984); Shanks v Upjohn Co., 835 P.2d 1189 (Alaska 1992). There is no duty to warn as to open and obvious dangers. Id.

4. Breach of Warranty
Breach of warranty claims are generally governed by Alaska's Uniform Commercial Code. See Alaska Statutes ch. 45.02. Breach of an express warranty requires proof of the existence of the warranty, breach, loss proximately caused by breach, and that the product failed to perform in accordance with warranty terms. Universal Motors, Inc. v. Waldrock, 719 P.2d 254 (Alaska 1986). Alaska also recognizes the implied warranty of merchantability and the warranty of fitness for intended purpose. Damages will be reduced based on the plaintiff's comparative negligence.

G. Successor Liability

A successor corporation can be held liable for the torts of a prior corporation if (a) the successor agrees to assume liabilities; (b) when the purchase amounts to a consolidation or merger; (c) where the purchasing company is a "mere continuation" of the selling company; and (d) when the sale is a sham to avoid liabilities. In addition, there are three additional "Modern" exceptions: (e) continuity of existence; (f) product line; and (g) "duty to warn." Savage Arms Inc. v. Western Auto Supply Co., 18 P.3d 49 (Alaska 2001).

H. Landowner Liability

Alaska courts have abandoned traditional rule that a landowner's liability would turn on the status of the plaintiff as trespasser, licensee, or invitee. Webb v. City & Borough of Sitka, 561 P.2d 731 (Alaska 1977). The duty of a landowner is to use reasonable care under the circumstances. Schumacher v. City & Borough of Yakutat, 946 P.2d 1255 (Alaska 1997). Thus, 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. Guerrero v. Alaska Housing Finance Corp., 6 P.3d 250 (Alaska 2000).

Landlords have a general duty of care to use reasonable care under the circumstances. This duty extends to commercial leases. Sauve v. Winfree, 985 P.2d 997 (Alaska 1999). This duty may extend to injuries that occur off the landlord's premises if the property is maintained in such a manner as to expose persons to an unreasonable risk of injury offsite. Guerrero v. Alaska Housing Finance Corp., 6 P.3d 250 (Alaska 2000).

I. Ultrahazardous Activity

Alaska has adopted the ultrahazardous activity test for determining whether a manufacturer or retailer of a dangerous product will be held liable for a resulting injury. The court determines whether a product is ultrahazardous, taking into account (1) whether there is a serious risk of harm, (2) whether the product cannot be made completely safe, and (3) whether the product is uncommon in the area. Some products, such as explosives, are deemed ultrahazardous as a matter of law and a manufacturer or retailer can be held strictly liable for damage resulting from use of that product.

J. Causation

There is a two-part test for causation in negligence cases. First, the plaintiff must show that the accident would not have happened "but for" the defendant's negligence. Second, the negligent act must have been so important in bringing about the injury that a reasonable person would regard it as a cause and attach responsibility to it. Robles v. Shoreside Petroleum, Inc., 20 P.3d 838 (Alaska 2001). The "but for" test may be inappropriate for cases involving independent concurrent causes. Vincent v. Fairbanks Memorial Hospital, 862 P.2d 847 (Alaska 1993).