Morrison v. United States

          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 ...