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Kalenka v. Jadon, Inc.

Supreme Court of Alaska

August 9, 2013

Uwe KALENKA, Personal Representative of the Estate of Eric W. Kalenka, Appellant,
v.
JADON, INC., d/b/a Chilkoot Charlie's, Jack Elias Morrell and William P. Wassili, II, Appellees.

Page 347

Kenneth P. Jacobus, Kenneth P. Jacobus, P.C., Anchorage, for Appellant.

Robert P. Blasco, Hoffman Silver Gilman & Blasco, Juneau, for Appellee Jadon, Inc.

No appearance by Appellees Jack Elias Morrell and William P. Wassili, II.

Before: CARPENETI, Chief Justice, FABE, WINFREE, STOWERS, and MAASSEN, Justices.

OPINION

STOWERS, Justice.

I. INTRODUCTION

Jack Elias Morrell spent several hours in Chilkoot Charlie's bar and was served alcoholic beverages. After Morrell left the bar, he and Eric Kalenka had a confrontation; Morrell produced a knife and fatally stabbed Kalenka. The personal representative of Kalenka's estate brought a wrongful death claim against Chilkoot Charlie's, alleging the bar had served alcohol to Morrell when he was a statutorily defined " drunken person" and therefore the bar was liable for Kalenka's death.

The issue before us is whether the Kalenka Estate raised a genuine issue of fact whether Morrell was a " drunken person" within the meaning of AS 04.16.030 when he was served alcohol at Chilkoot Charlie's. We hold that the Kalenka Estate has presented enough evidence to clear Alaska's low threshold for summary judgment and to support a reasonable inference that Morrell's intoxication was plain and easily observed while at the bar. We therefore reverse the superior court's decision granting summary judgment to Chilkoot Charlie's.

II. FACTS AND PROCEEDINGS

A. Facts

In February 2004 Morrell and two cousins went to Chilkoot Charlie's in Anchorage. They were there for two to four hours, during which time Morrell was steadily drinking. Morrell stated that he did not have any drinks before arriving at Chilkoot Charlie's, nor did he have any drinks after leaving the bar.

After leaving Chilkoot Charlie's, possibly as late as 2:30 a.m., Morrell drove his cousin's vehicle to a nearby park and then to a Taco Bell. At about 3:15 a.m., in the Taco Bell drive-through, Morrell's vehicle struck Kalenka's vehicle's rear bumper. Kalenka got out of his car and a confrontation ensued; Morrell produced a knife and stabbed Kalenka multiple times. Kalenka died soon thereafter.

Two police officers who arrived at the scene later testified at Morrell's criminal trial that shortly after stabbing Kalenka, Morrell was uncooperative, slurred his speech, and smelled of alcohol. Claude Doucet, who witnessed the confrontation, also testified at the criminal trial that Morrell appeared intoxicated, noting Morrell was loud, cursing, and stumbling. Morrell was estimated to have a blood alcohol level at the time of the incident as high as 0.27, the equivalent of having up to 13 to 14 typical alcoholic beverages in his system.

The general manager of Chilkoot Charlie's stated that none of the bar's employees remembered seeing Morrell that night. Doucet had also been at the bar for several hours that evening before the Taco Bell incident, and he stated he did not see Morrell at the bar and did not observe anyone " obviously intoxicated" being served at Chilkoot Charlie's. A Chilkoot Charlie's' employee recognized Morrell from his picture in the newspaper

Page 348

and stated that he had seen Morrell in the bar several times before February 2004: " On those occasions [Morrell] had been polite, soft spoken and mellow." Neither party presented any direct evidence of Morrell's actual appearance or conduct while at Chilkoot Charlie's, and, more specifically, presented no direct evidence of Morrell's appearance or conduct when served alcohol at Chilkoot Charlie's.

B. Proceedings

In February 2006 Uwe Kalenka, the personal representative of Eric Kalenka's estate (Kalenka Estate), filed a wrongful death action against Jadon, Inc. (Chilkoot Charlie's).[1] The Kalenka Estate claimed Chilkoot Charlie's violated AS 04.16.030 by serving alcohol to Morrell when he was a drunken person and therefore was liable for Kalenka's death.[2]

In February 2010 Chilkoot Charlie's moved for summary judgment on two grounds: (1) there was no evidence that Chilkoot Charlie's with criminal negligence provided Morrell alcohol when he was a " drunken person" ; and (2) Morrell's stabbing of Kalenka was a sufficient superseding cause to discharge Chilkoot Charlie's of any liability for Kalenka's death. The ...


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