United States District Court, D. Alaska
ORDER CERTIFYING QUESTION TO THE ALASKA SUPREME
COURT
JOHN
W. SEDWICK SENIOR JUDGE.
Pursuant
to the request of Plaintiff, the Court has considered whether
to exercise its discretion to certify a question of Alaska
state law to the Alaska Supreme Court under Alaska Appellate
Rule 407(a). Under the rule, this court may certify to the
Alaska Supreme Court a question of state law “which may
be determinative of the cause then pending in [this court]
and as to which it appears to [this court] there is no
controlling precedent in the decision of the supreme court of
this state.”[1] “The decision to certify a question
to a state supreme court rests in the ‘sound
discretion' of the district court.”[2]
DISCUSSION
This
lawsuit arises out of an elevator malfunction that occurred
on September 21, 2013, at the Hilton Hotel in downtown
Anchorage. Plaintiff Roberta Urena was the sole passenger in
the Hilton elevator when it made an unexpected safety stop.
Plaintiff alleges that the elevator plunged in a free fall
for eight floors before coming to a stop. Plaintiff was
trapped in the elevator between the fifth and sixth floors
and had to be extracted by the Anchorage Fire Department. She
alleges that she suffered injuries because of the fall.
Defendants Schindler Elevator Corporation, the entity which
maintained the subject elevator at the time of the incident,
and Columbia Sussex, the owner of Hilton Hotel and its
elevators, acknowledge that there was an unexpected emergency
stop but dispute that the elevator did a free fall and
dispute the distance the elevator dropped during the stop.
Plaintiff
argues that this court should treat Defendants as
“common carriers” thereby subjecting them to a
higher standard of care in relation to their elevator
passengers. She notes that the Alaska Supreme Court has
applied the heightened standard to airline
operators.[3] In doing so, the Court reasoned that
“a general duty of due care instruction is inadequate
with respect to common carriers transporting passengers for
hire.”[4] Plaintiff asserts that while the Supreme
Court has not articulated a test for determining whether a
defendant is a common carrier, elevators are akin to
airplanes because passengers of each “are completely at
the mercy of the carrier and are entitled to assume that the
highest degree of care is being taken for their
safety.”[5]Given the similar vulnerabilities between
an airline passenger and an elevator passenger, Plaintiff
argues that Alaska law would treat Defendants as common
carriers.
Defendants
argue that the Alaska Supreme Court has limited the common
carrier heightened standard of care to the context of an
airline and its passengers and would not extend its
application any further. In support they cite State v.
Johnson[6] where the Alaska Supreme Court explained
that a heightened standard of care does not categorically
apply to situations where the plaintiff and the defendant
have a relationship that is comparable to an airline and its
passengers.[7] They argue the appropriate standard of
care under Alaska law is simply that the defendant exercise
care that is reasonable and prudent under the
circumstances.[8]
Defendant
also points to AS 05.20.010 in support of their argument. In
that statute, the state legislature declared that an owner or
operator of ski equipment and devices, as defined in AS
05.20.120, “is not considered a common
carrier.”[9] A “device” under AS 05.20.120
includes those items “designed and operated for the
conveyance or movement of persons and that is used as a
source of or aids in the promoting of entertainment,
pleasure, play, relaxation, or instruction including but not
limited to ski tows, roller coasters, merry-go-rounds, and
Ferris wheels.”[10] Defendants assert that elevators are
more akin to these ski “devices” than to
airplanes.
The
issue of common carrier liability for elevator owners has
been decided in a number of other states. As outlined by the
Maryland Court of Special Appeals in John Hopkins
Hospital v. Correia, [11] 21 states, including four
states within the Ninth Circuit, have concluded that elevator
owners are held to the standard of care of common carriers,
and 14 states, including three other states within the Ninth
Circuit, have held that elevator owners are held to an
ordinary care standard.[12]
In the
absence of controlling precedent by the Alaska Supreme Court,
this court would normally attempt to predict how the Alaska
Supreme Court would resolve the issue based upon related case
law. However, it is difficult to predict state law in this
instance given the Alaska Supreme Court's existing case
law on standards of care, the legislature's enactment of
AS 05.20.010, and the split among other states. This
uncertainty, combined with the fact that the standard of care
could be determinative, leads the court to conclude that it
is presented with a rare instance where certification of the
issue under Alaska Appellate Rule 407(a) is appropriate.
Accordingly, this Court respectfully requests the Alaska
Supreme Court to answer the certified questions presented.
CERTIFIED
QUESTIONS
Pursuant
to Alaska Rule of Appellate Procedure 407(a), the United
States District Court for the District of Alaska respectfully
requests the Alaska Supreme Court to answer the following
certified questions of Alaska law:
Whether the duty of care owed to elevator passengers by an
elevator owner is that of a common carrier or that which is
reasonable and prudent under the circumstances.?
Whether the duty of care owed to elevator passengers by a
company that provides services and maintenance to elevators
is that of a common carrier or that which is reasonable and
prudent under the circumstances?
The
Alaska Supreme Court's answer to these related questions
may be determinative of Plaintiff's claim in this case.
The Alaska Supreme Court may, in its discretion, ...