United States District Court, D. Alaska
STEVEN D. MORRISON, Plaintiff,
v.
UNITED STATES OF AMERICA and CHENEGA INTEGRATED SYSTEMS, LLC, Defendants.
ORDER AND OPINION [RE: MOTION AT DOCKET 47]
JOHN
W. SEDWICK, SENIOR UNITED STATES DISTRICT COURT JUDGE
I.
MOTION PRESENTED
At
docket 47, Defendant Chenega Integrated Systems, LLC (CIS)
filed a motion for summary judgment. Plaintiff Steven
Morrison (Plaintiff) filed an opposition at docket 51. CIS
replied at docket 53. Oral argument was not requested and
would not assist the court.
II.
BACKGROUND
In
January of 2012, Plaintiff was working for Pacific Alaska
Freightways, Inc., as a commercial delivery driver and was
assigned to make a delivery to Iceman Outfitters, a store
within the confines of Eielson Air Force Base (the
“Base”). Security services for the Base,
including inspection of commercial delivery vehicles, were
provided by CIS pursuant to CIS's subcontract with TW
& Company, Inc. (the “Subcontract”). TW in
turn had a Security Forces Support Services Contract with the
United States Air Force for security services at the Base.
After
arriving at the Base for the delivery, Plaintiff exited his
truck at the designated inspection area in order for the
security guards to perform their mandatory inspection and
paperwork. He waited in the designated area during the
guards' inspection. While returning to his truck after
the inspection, he slipped and fell on ice, injuring his
right knee.
It is
undisputed that drivers such as Plaintiff are required to
exit their trucks for inspection before being allowed to
enter the Base. It is undisputed that Plaintiff was parked
where the CIS security guards had instructed him to park and
was walking where he was expected and instructed to walk. It
is undisputed that the area where he was walking was icy.
Plaintiff
subsequently brought this lawsuit in federal court, alleging
negligence and negligence per se against the United States
and CIS. As to the negligence claim, Plaintiff alleges that
the United States and/or CIS “negligently designed,
constructed and/or maintained the Eielson front gate walk
areas.”[1] As to the negligence per se claim,
Plaintiff alleges that the United States and/or C IS
“violated rules, regulations, codes and/or statutes
designed to protect persons such as [Plaintiff] from the type
of harm he suffered . . . .”[2] CIS now asks the court to
grant it summary judgment, arguing that it does not owe
Plaintiff any duty to provide safe, ice-free walkways. It
argues that it did not design or construct the front gate and
inspection area on Base and that the United States is
responsible for snow and ice removal on walkways, entryways,
and roadways throughout the base, including the front gate
and inspection area. Plaintiff opposes the motion, arguing
that CIS owes Plaintiff a duty to maintain the walkways and
ground surfaces in the inspection area in a reasonably safe
condition and to warn him of any dangerous walkway or surface
conditions based on its status as a tenant and/or
“occupier of land, ” as well as under the
Subcontract.[3]
III.
STANDARD OF REVIEW
Summary
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”[4] The materiality requirement
ensures that “only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary
judgment.”[5] Ultimately, “summary judgment will
not lie if the . . . evidence is such that a reasonable jury
could return a verdict for the nonmoving
party.”[6] However, summary judgment is mandated
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.”[7]
The
moving party has the burden of showing that there is no
genuine dispute as to any material fact.[8] Where the
nonmoving party will bear the burden of proof at trial on a
dispositive issue, the moving party need not present evidence
to show that summary judgment is warranted; it need only
point out the lack of any genuine dispute as to material
fact.[9] Once the moving party has met this burden,
the nonmoving party must set forth evidence of specific facts
showing the existence of a genuine issue for
trial.[10] All evidence presented by the non-movant
must be believed for purposes of summary judgment, and all
justifiable inferences must be drawn in favor of the
non-movant.[11] However, the non-moving party may not
rest upon mere allegations or denials, but must show that
there is sufficient evidence supporting the claimed factual
dispute to require a fact-finder to resolve the parties'
differing versions of the truth at trial.[12]
IV.
DISCUSSION
Negligence
Under
Alaska law, the existence of a defendant's duty in a
negligence case is a question of law which can be decided at
the summary judgment stage. Summary judgment is appropriate
when “no evidence tends to suggest that any duty has
arisen between a defendant and
plaintiff.”[13] To determine whether a defendant owes a
plaintiff a duty of reasonable care, the court first
considers “whether a duty is imposed by statute,
regulation, contract, undertaking, the parties'
preexisting relationship, or existing case
law.”[14] If these sources do not resolve the
issue, the court applies a set of public policy factors to
determine whether an actionable duty exists.[15] The related,
and sometimes intertwined, question regarding the scope of
that duty is also an issue that can be properly decided at
the summary judgment phase if the duty owed is “clearly
and vastly narrower in scope than the one that the other
party asserts in opposing summary
judgement.”[16] However, summary judgment is generally
disfavored in situations where no party disputes the
existence of a duty, but the precise scope of that duty is in
question. “[I]t is much harder to show that there are
no genuinely disputed material facts when the existence of a
duty is clear and the question is of its precise scope, or
whether given conduct fulfilled it.”[17]
CIS
argues that summary judgment is appropriate here because the
only reasonable inference to be taken from the undisputed
facts is that CIS did not owe Plaintiff a duty of care with
respect to his use of the walkways and surfaces in the
inspection area. CIS argues that the United States was the
landowner and had procedures for maintaining roadways and
walkways and assigned those responsibilities to military
personnel, not CIS. For instance, the evidence shows that
removal of snow and ice from walkways and entryways of
buildings on Base was assigned to each building's
Facility Manager. The Facility Manager for the front gate and
inspection area in January of 2012 was S.Sgt. Freeman, an
active duty military member in the Security Forces Squadron.
The responsibility for clearing snow and ice from any general
roadway on base was assigned to the Civil Engineering
Squadron. The Civil Engineering Commander in charge of road
maintenance was Lt. Col. Michael Sheredy, another military
member. Based on this evidence, CIS argues that it could not
have owed Plaintiff any duty of care with regard to the
condition of the walkways in the inspection area.
Plaintiff
argues that, regardless of the Government's involvement
in clearing snow and ice on the Base, Alaska case law still
makes CIS liable here. He argues that courts have held
tenants responsible for maintaining their leased premises in
a reasonably safe condition, and therefore CIS was
responsible for maintenance in the inspection area. Plaintiff
does not provide any evidence to show that CIS was a tenant.
There is no lease agreement. Indeed, the fact that there was
a Facility Manager responsible for maintenance of the
inspection area shows that CIS did not occupy that portion of
the Base to the exclusion of Government employees.
Plaintiff
argues that CIS owes him a duty of care with respect to the
condition of the surfaces in the inspection area because,
under the facts here, CIS is an “occupier of land,
” even if it is not legally considered a tenant.
Plaintiff relies on an Alaska Supreme Court case, Moloso
v. State.[18] The court in Moloso quoted with
approval a California case which stated that an
“occupier of land” is liable when he is aware of
a concealed condition that poses an unreasonable risk of harm
and fails to warn others about or repair the
condition.[19] In Moloso, however, the
defendant was a landowner in possession of the property, and
the court was discussing landowner liability. It did not
discuss who constitutes an occupier of land, nor did it
consider whether a defendant who is not a landowner, tenant,
or exclusive user of the land but, rather, a subcontractor
performing services for the landowner at certain locations on
the property can nonetheless be considered an occupier. Thus,
Moloso does not clearly establish the existence of a
duty here.
Plaintiff
does not cite any other case that is sufficiently on point.
However, Alaska courts have adopted Restatement (Second)
Torts § 343, which imposes liability on a
“possessor of land” for certain concealed
conditions. Section 343 reads as follows:
A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if, but
only if, he (a) knows or by the exercise of reasonable care
would discover the condition, and should realize that it
involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves ...