*4 Before RABINOWITZ, J., and C. CONNOR, ERWIN, BOOCHEVER and BURKE, JJ.
RABINOWITZ, Chief Justice.
appeal
This is an
judgment
from the
personal
an action for
injuries.
appellee
After trial
jury,
Ken-
damages
neth Rich was awarded
$450,000,
appellee Mary
and
Rich received
a
$50,000.
superi-
verdict of
Following the
or court’s
for
denial
their motion
a new
judgment
trial and
motion
notwith-
verdict, appellants
placed
a
standing
top
ledgers
filed
to form the
timely
appeal.
surface;
stage
notice of
(F)
work
and
wheels—
equipped
designed
prevent
with locks
1970,
28,
July
On
Kenneth Rich was em-
movement of the scaffold
engaged.
when
ployed
“taper” by
Painting
Totem
and
as
working
“cleated” the
surface
taper
A
Jones
Company.
Decorating
covers and
driving
16-penny
one
nail into the bottom
panels
joints
abutting
conceals the
between
ledgers,
of each of
then
the three
bending
tape
by placing
taping
sheetrock
respective
nails around their
bearers.
compound
taping,
joints.
After
over
produce
July 23,
began
Rich
joints
are “floated” to
On
Kenneth
covered
working
prior
painting.
the mezzanine area
smooth surface
gymnasium, using
provided by
the scaffold
McGrath, Alaska,
working Rich was
He
Bachner-Northwest.
continued
project
involving
on a
the construction of
work
July
area until
On
gymnasium and additional
new
class-
day
completed
he apparently
tap-
village
Appellants
rooms for the
school.
ing process
floating
tape
and was
Jones, doing
Bachner
business
joints
portions
ceiling
upper
Bachner-Northwest,
the general
were
con-
the walls.
job.
tractors on the
Totem had been cho-
painting
approximately
sen as
At
11:50 a.m. Donald
subcontractor
taping
gymnasium
heard
“thud” from the
work.
Jones
investigation,
area. After a brief
Jones
The contract between Bachner-North-
*5
by
assumed
been
noise had
caused
provided
west and Totem
that Totem
dropping
a worker
tools or materials.
supply
equipment,
would
its own
but that
Rich
for
When
did not arrive
the usual
pay
Bachner-Northwest would
for
break,
by
lunch
a search was
noon
initiated
transportation
equipment
job
of that
to the
and
Maxim. Rich was found
Robert
Jones
However,
agreed
later
site.
was
area,
lying
in the
unconscious
mezzanine
provide
would
Bachner-Northwest
back,
outspread, ap-
on his
his
with
arms
job,
ap-
scaffolding to be
on the
in an
used
proximately two feet from the scaffold he
parent attempt to save Bachner-Northwest
perform
been
his
using
had
to
work. The
transporting
Totem’s scaffold-
cost
with,
position
scaffold was in
“scissored”
a
Jones,
ing
Donald
Bachner-
McGrath.
longer support-
ledgers
two of the three
no
foreman, along
sever-
job
with
Northwest’s
by
16-penny
ed
a bearer at one end. The
Bachner-Northwest,
employees
al other
nails, which
into the
had driven
bot-
Jones
pole
rolling
a
tubular
scaffold
constructed
cleating,
ledgers
tom of the
for
were bent
employed
for
Mc-
the use of those
on the
flat,
8-penny nails
a
used to
and
number
project.
building
Grath
assumed
Jones
ledgers
par-
planking
attach the
had
job
using
that everyone
would
on
pulled
tially
planking
The
work-
loose.
scaffold,
familiar
and was
angle where the
ing surface
at an
two
was
scaffolding
type
in which
of this
manner
supported
ledgers
longer
by
were
customarily
taping purposes.
was
used
bearer.
by
constructed
scaffold
was
Jones
taping
gallon bucket
A half-full
five
just
high.
principal
six feet
Its
under
floor,
its
compound
on the
found
was
illustrated,
parts
by
photograph ap-
(as
scaffolding. There
side, six
from the
feet
appendix
opinion)
to this
pearing in the
final
it had rolled
its
was
evidence
support
hulls —end
mem-
(A)
were:
two
also
resting place.
was
found on
A trowel
bers;
upper portions
bearers —the
(B) two
floor,
com-
taping
bucket
near the
hulls;
diagonal
(C)
braces —stabi-
pound.
hulls;
lizing
which connect
braces
the two
to recall what
spanning
beams
Kenneth Rich
unable
(D)
ledgers
support
three
—
being
prior
his
bearers;
immediately
happened
(E) planking
two
—boards
perform
and Maxim. The last
found
coordination
ei-
drills with
Jones
hand,
a
thing
taking
he
a break for
ther
remembers
say
thing
and would
one
when
cup
approximately
a.m.
coffee at
11:20
he meant another.
Mead
ob-
Dr.
further
served abnormal reflexes in the lower
Rich,
Maxim,
accompanied by
v/as flown
limbs
right
side,
on the
hand
loss of
Anchorage
emergency
and taken
sense
reality,
breathing
and manner of
Hospital
room at
where he was
Providence
indicating
swelling
contusion
Mills,
first seen
an
Dr. William
or-
F.
brain.
thopedic surgeon.
appeared
Rich
somno-
lent, uncoordinated,
provide
and unable to
Following his
hospital
release from the
a thorough history. He
observed
was
to Kenneth Rich
care for him-
unable
table, ap-
self,
thrash about on the examination
requiring
supervision,
constant
assist-
peared
well,
tongue
unable to extrude his
ance and
approximately
direction.
It was
positive
sign
exhibited a
Babinski
one month before he was able to undertake
right foot,
injury to the
indicating
personal
even the
his
hygiene.
care of
spine
diagnosed
or brain.
Mills
talk,
Dr.
Rich
attempted
When he
had diffi-
he
as having sustained a
of the left
contusion
culty pronouncing
observed
words
temporal
frontal or
area
the brain and
to drool
years
like a small infant.
possible
spine.
strain of the lumbosacral
followed,
prog-
he
limited
made some
signs
physical
No
injury
external
were
through
psychiat-
ress
physical,
the use of
However,
observed.
Dr. Mills stated that
did,
ric and
therapy.
vocational
He
how-
the lack
injury
external
ever,
was not
undergo
pronounced personality
diagnosis,
inconsistent with his
in-
brain
change
required
Valium, Di-
and is
to take
commonly
from external trauma
oc-
Trompiz
daily
lantin and
on a
Ac-
basis.
physical
curs
markings
without
body
doctor,
cording to
suffers from the
his
he
surface.
residual
the left
effects of a contusion of
brain,
un-
temporal
frontal
area of
Mead,
Dr.
Perry
neurosurgeon,
A.
as-
rest
employable
will remain so for
sumed the care and
treatment
Kenneth
improve-
prognosis
life.
Mead,
first
Rich. When
seen Dr.
Rich
*6
ment is zero.
appeared
confused,
signs
be
showing
to
of
right side
an
evidencing
weakness and
ab-
by an
examined
Prior to
Rich was
trial
right
normal reflex in his
Dr.
foot.
Mead
Bachner-Northwest,
expert employed by
a
diagnosis
made
tentative
of contusion of
Mullins,
neurologist.
a
Dr. Richard
Seattle
region
the left
temporal
frontal
concluded,
diffused
Dr. Mullins
from the
brain and
Rich
admitted
to Providence
injury
history of Rich’s
nature
and
of
Hospital.
days
During
first
of
three
symptoms,
a
that Rich had suffered from
hospitalization, Rich
and
was incoherent
cerebral
accident or thrombosis
vascular
recognize
Upon
unable to
dis-
his wife.
partially
His
based
conclusion was
stroke.
days later,
charge
many
four
he still had
per-
for a
on
fact that was difficult
of
symptoms
signs
same
and
which
injury
as
an
son to have sustained massive
in
were
he
admit-
evidence when
had been
as Rich
to the frontal lobe of the brain
ted
hospital.
diagnosis
to the
Dr. Mead’s
sign
in-
without some
claimed
external
at discharge was contusion of the frontal
However,
jury.
testified
Dr. Mullins
parietal
temporal portions
and frontal
of the brain could occur
severe contusion
4, 1970,
August
the.
On
brain.
Mead
Dr.
injury.
external evidence of
Dr.
without
office,
conducted an
his
examination at
aphasic, forget-
Rich to
Mullins found
finding
right
ful,
tenderness in Rich’s
ribs.
give
un-
history,
unable to
a coherent
inability
Rich also
foot,
demonstrated an
tap
right
rapidly
his
unable
able
maintain his
right
balance and
Mead noted
Dr.
his
coordinate
movements
right
that his
functioning
hand
hand,
foot,
suffering
was not
arm and
from
properly.
read,
right
Rich was unable to
could
deep
reflexes on the
headaches.
any
external
Noting the absence
and the west.
body
his
increased
were
side
any
signs
injury
ab-
and the lack
witness
reflex was
right superficial abdominal
observed
testify that he had
symptoms who could
signs and
All of these
sent.
scaffold, appel-
from the
brain
Rich fall
Kenneth
with contusion of
were consistent
argued
evidence
lants
medical
Mullins also
according
Mullins. Dr.
to Dr.
appellees
prior history
presented by
equally
was
consist-
found no indication
sclerosis,
diagnosis
preexisting lesion
headaches,
high blood
ent with the
arterial
accident,
opposed
or cerebral vascular
pressure, cardiovascular disease
other
blow.
disorders,
present
an external
a contusion caused
are often
related
patient suffering a
stroke.
in a
thrombosis
Asphalt
Anchorage
Teller v.
a
He
admitted that
thrombosis
further
Co.,
Inc.,
P.2d
Paving
At
patient
under 40.
stroke is rare
a
recently
1976),
said:
we
years
incident
was 37
the time of the
Rich
rulings
reviewing
court’s
a lower
high
age.
Dr. Mullins also stated that
verdict
for directed
pertaining to motions
patients
percentage
thrombosis
stroke
the evidence
required
we are
to view
period
suffer
recurrence in a short
stroke
non-mov
light most favorable
infarctions,
myocardial
and have
time
him the benefit
afford
ing party,
of which there was no evidence Rich’s
which the evidence
all
inferences
case.
fairly supports.2
Appellants’ first claim of error concerns
to a direct-
moving party
entitled
superior
to direct ver-
court’s refusal
that fair-
only if it can be said
ed verdict
theory
dict in their favor. Rich’s
of liabil-
reasonable
exercise of
jurors
minded
ity
appellant
duty
him
owed
but one conclusion
judgment could reach
exercise reasonable care to ensure
such rea-
controversy.
If
on
issue
use,
scaffold was safe for its foreseeable
differing con-
persons
reach
could
sonable
duty
appellant
and that
ac-
breached that
clusions,
question of
jury question
tually
causing
proximately
exists,
motion for
directed
fact
and the
case,
injuries.1
appellees’
At the close of
Applying
be denied.3
these
should
verdict
appellants moved for a directed
verdict
case,
conclude
principles
the instant
we
liability, claiming
issue of
that there
ap-
denied
properly
was no evidence from which fair-minded
pellants’
for a directed verdict.
motion
people could conclude that Kenneth Rich
infer,
jurors could
scaffold,
Reasonable
fell from the
or that
a fall
presented, that the scaf
proximately
from
evidence
caused
act or
causing Rich
collapsed,
fold
part
scissored
omission
of Bachner-North-
*7
Holiday
America,
Citing
v.
(Second)
Inc.
2.
Inns
Section 392 of the Restatement
(Alaska 1974);
Peck,
provides:
Breit
(1965)
negligence was ever raised.
pressure
its
applying
move
expert
Appellants
testified
position
base. This
further
take the
requires
all
four
good
practice
court erred in granting a di
*8
in
rected
the scaffold
respect
verdict with
wheels be locked when
to the issue of
injuries
op-
prior
have
4. This
would
ease was
mate cause of
tried
to our decision
complete
appellees’
State,
(Alaska
claims
a
bar to
Kaatz v.
erated as
439 the employer because is better able to bear theory of liability was that Bach- the risks and distribute the losses attribut ner-Northwest duty owed a to exercise conditions; able working to unsafe be and reasonable care in the construction and de- legislative cause the intent behind the ployment Code of the Appellant scaffold. next would be frustrated if the defense of con superior asserts that the court erred in in- tributory negligence This were allowed. structing the jury Safety that the Alaska unpersuasive, contention find largely we Code established that standard care of for the reasons set Judge forth Plum liability determined, which their was to be America, Royal mer in Krall Inns and that negli- a violation of the Code was of Inc., F.Supp. (D.Alaska 146 gence as a matter of law.8 regard Safety Code, 8. proportionately great to the nonfatal as rate of gave following instructions to the in the accidents sustained state. jury: (b) For these reasons is found and de- (in part) Instruction No. necessary program : clared to undertake a you preventable If find that the defendant violated the reduce the incidence of acci- provisions Safety (Section of the Alaska General in the dents State SLA eh. respect with 1955) Code to the construction [since amended] scaffolding, you Regula- maintenance of must find A.S. Sec. 18.60.020. Rules and negligent Department may defendants as of a matter tions. The of Labor is- orders, regulations You should law. then whether consider sue the sary rules and neces- Safety carry of purposes this violation the Alaska General out of Sections proximately injury chapter. (Section Code caused to Kenneth 10-100 of this ch. Mary finding 1955) and affirmative, you Rich. If that in the SLA damages Employment. should award A.S. 18.60.075. Sec. Safe plaintiff according (1) each in- employment employer court’s An furnish shall reasonably structions. safe; (2) which is furnish and you Instruction No. safety (3) 21: safeguards; order for use and devices adopt processes determine whether there has been a vio- rea- and use methods and Safety Code, sonably adequate employment lation the Alaska General to render the you place reasonably must find that employment safe; the defendant failed to construct, every thing reasonably erect or maintain scaffold (4) and do other contemplated by necessary life, a manner protect health, the code. safe- your duty ty employees. It to determine manner (Section what and welfare 43- ‘cleating’ requires par- 1949; the Code for this 2-21 am Sec. 3 ch. 148 SLA ACLA type scaffolding ticular 1957) and if the method require- used the defendant met A.S. 18.60.105. Definitions. As used Sec. ment. chapter ‘safe’ or Sections 10-100 you If find that should defendant did employment ‘safety’, applied as to an or to requirements code, not meet the then place employment, includes conditions you negli- shall find that the defendant was hygiene and rea- methods sanitation gent. protection life, sonably necessary for the you you find, If so should then must then employees. health, safety and welfare of proxi- determine if such (Sections 1949; am 43-2-21 ACLA Sec- plaintiff’s injuries, mate cause any. if of the' 1957) tion 3 ch 148 SLA Chapter I of the General Code of The court attached to its written instructions Alaska, Labor, Department State copies following provisions of law: June, revised 1969: ALASKA STATUTES: Legislative Scope requirements A.S. Sec. 18.60.010. Intent. 300-01 of this —The (a) legislature preventable installation, apply finds that code shall erec- leading construction, use, accidents are the cause of death tion maintenance and state, nearly protective equipment, tempo- that accidents cause one- of all removal rary safeguards facilities, devices, fourth of all deaths of the race in the white percent employed state as much all as 82 used and in connec- methods age groups; pro- demolition, building deaths certain tion all and other poration operations per- of accidental deaths all deaths and all construction work high taining production, op- is three as times the state as thereto and to parts other of the United where States eration and use of industrial facilities. prevention campaigns intensive accident 300-03 word ‘shall’ where Definitions —The conducted; used, ‘mandatory.’ are and that an but unknown to be understood *10 440 ly, Ferrell, adoption re- in we that the requires this stated
Resolution of
issue
partic-
adopted
per
negligence
which
the rule of
se was
view of our decision
ularly
involving
in
per
appropriate
discussion
cases
negligence
se rule as well as
rule
case
ordinance or statute.
applicability
violation of a traffic
Baxter,
Connor, writing
regard,
for
at
P.2d 250 In this
bar.
In Ferrell v.
484
Justice
1971),
court,
(Alaska
followed the
said:
this court
(Second)
set
in
rules
forth
Restatement
always
rules have
been violated
Traffic
286,
(1965), in
Torts
and 288A
288A
§§
This
sustained as
result.
injuries
and
adoption
upholding
cer-
court’s
trial
undoubtedly continue
practice will
13
regulations,
tain traffic
found at A.A.C.
im-
liabilities are
or not civil
whether
104.31,
applicable
as
standards
96 and
§§
gov-
people must be able to
posed. But
law
displacing
behavior
common
reasonable
according
known
ern their affairs
Ferrell,
Thus,
that
negligence.
in
held
we
standards.
ad-
of a statewide
an unexcused violation
adopted pursuant
regulation,
ministrative
justice
Clarity, certainty,
are
and
per
authority,
negligence
legislative
fair to
certainly
It is
re-
goals we seek.
Although
all our subse-
se.
Ferrell and
drivers,
must be tested on
quire all
who
quent
treating the
decisions
doctrine
regulations
and
before
these traffic laws
effect to
negligence per se dealt with the
licenses, to
they may
driver’s
obtain
or
of traffic statutes
be
to violations
given
obey
the road.10
know and
the rules of
persuaded
regulations, we are not
the same considerations
We think
per
should be
negligence
se
doctrine of
negligence per se
apply
which
us to
led
traffic
limited
instances of violations
of traffic
violations
rule
instances of
regulations.9
statutes or
we
regulations require that
statutes
upon
sections
The Restatement
regard,
we
In
apply the
here.
doctrine
grounded are
our
prior
decision
Ferrell
establish
that our
decisions
note
discretion11
judge
vested
Admitted-
the trial
limited to traffic violations.
planks
Walkway
‘safety
be cleated
shall
herein
factor’ as used
The term
318-119 —
slipping
prevent planks
metal
bearers.
between the ultimate
mean the ratio
shall
breaking
strength
safe unit
and allowable
prior deci-
of the fact
that our
9. Because
material,
working
structure
stresses of
happened
traf-
violations of
to involve
sions
‘safety
five
The term
factor of
or device.
regulations, Bachner-North-
fic statutes
material,
structure,
(5)’
means that
argues
the doctrine
west
strength
of such
device shall be constructed
per
other
a violation of
se
not extend to
does
imposed
one-
the normal
load will be
laws.
state
( n )
breaking
ultimate
load. Oth-
fifth
are
prior
to here
decisions
referred
‘safety
appearing
shall
factors’
herein
er
(Alaska
Bottcher,
Clabaugh v.
172
545 P.2d
apply in similar manner.
Standard
text-
Baker,
1976) ;
v.
reasonably protect the necessary to rule general of conduct in or abstract health, safety employees.” and welfare of per terms negligence se applica- has no Department pre- of Labor has more tion and in ... such a case liabili- cisely obligations, by means defined these ty by determined the usual test rea- applicable of a code of to those standards sonable care. engage who in or conduct which business Thus, Breitkreutz, in su poses a risk we affirmed the injury.13 is not It unrea- perior adopt refusal court’s to require the con sonable to that contractors be fa- standard an trolling regula miliar with the administrative laws of this which set state directing drivers tion not to a drive at acceptable the minimum standards speed “greater than is pru reasonable and safety. as the driver must automobile Just particular significance dent.” Of obey road, know the rules of the Ei approval Breitkreutz14 we cited with obey contractor must the rules know and 367, Moneyhon, senhuth 161 v. Ohio of his St. trade. 440, 119 (1954). N.E.2d 443-44 In Eisen Subsequent Ferrell, publication to this huth, Supreme Court of Ohio articulat court, 17, Baker, Breitkreutz P.2d ed or adoption the relevant criteria for (Alaska 1973), attempted 20-24 to further rejection or legislative enactment judge define criteria trial should following regulation in administrative consider in deciding adopt whether to manner: legislative reg- enactment of administrative as the ulation substitute standard of care. any legis- The determination whether It has come to our attention that Breit- prescribes specific lative enactment a generated kreutz has some confusion conduct, course of the violation of which among the trial practicing bench and bar se, per negligence only or a rule of concerning the relevant criteria to be em- conduct, compliance be with which is to by ployed the trial judge determining reasonably tested the conduct of a adopt whether to reject legislative or a or prudent presents person, problem often a 250, (Alaska 1971), citing P.2d Be- and whether was violated there was sufficient (Second) statement of Torts 286 comment § excuse to warrant evidence of submission Prosser, Similarly, jury. d and W. Law of Torts at 201- issue this latter to (3d 1964) jury ed. if are determined to exist as issues opinion also both, issues, See our either, recent in McLinn v. be- of these then it or Ass’n, task, Kodiak jury’s appropriate Elec. in- 546 P.2d under comes the structions, (Alaska 1976), recognized where this court resolve such issues. factual adopt regulatory a decision not case, Subsequent 13. to the accident may justified standard be in the circum employer’s legislature reaffirmed that party’s stance “[w]here infraction is due compliance statutory extended to duties ignorance operative innocent facts by amending 18.60.075(a) Code, AS regulation ap which make the statute or part: read plicable.” everything employer shall do neces- An safety life, sary protect health legislative 12.Once enactment adminis- including: employees regulation applicable adopted trative as the occupational complying (1) safe- with all care, standard of trial role of the court regulations ty standards and health is to then determine whether was suf- there department promulgated ficient evidence from which a could rea- sonably regulation infer that at statute or 23. 514 P.2d Thus, fice. if the trial decides the there exists difficulty. great Where commanding regulation statute administrative should legislative enactment adopted controlling others as the standard for the prohibiting care, gives is a adequate and there vi- instructions doing specific act prescribed by solely covering one the standard care of such enactment olation it, ordinary principles negligence, stat- obey duty it is violation whose se; regulation ig- per but where ute or administrative can be constitutes un- ex- nored the court’s instructions. Even legislative enactment exists there *12 however, others, gen- circumstances, the der these if of pressing conduct, terms, is regulation rule of statute administrative or abstract eral relevant, may application, and deemed trial court has no then the negligence per se testimony by appli- permit show- the introduction of liability must determined negligence.15 ing as exer- of due care violation as evidence of of the test cation warrant, person reasonably prudent Thus, un- if the circumstances by a cised case. trial of the court has discretion to refer to the circumstances der regulation in- statute or administrative and defi- words, positive if and In other is of jury form the that a violation either estab- has been care of nite standard negligence.16 evidence of whereby legislative enactment lished has there may brings question whether of jury determine This us finding a sin- correctly ap superior court a violation thereof whether the been fact, negli- a violation plied principles and Breit- gle issue of Ferrell jury se; must but where the it per kreutz in bar when decided gence the case at neg- or lack adopt particular Gen determine sections of the the vio- party charged with of a standard ligence Safety applicable eral as the Code Safety by legisla- fixed rule conduct lation of the General care. sections of from a consideration tive enactment given jury in the court’s de17 to the Co instructions multiple facts and circum- furnish, view, specific evaluation in our applying, as the process of stances mini regarding the and definite standards a rea- care, the conduct of constructing standard acceptable means of mum per person, negligence sonably prudent provided bracing as that a scaffold such se is not involved. not couched regulations These are Rich. terms”; em they abstract “general judge trial event the deter standards body positive definite adoption inappropriate mines because neg require the The sections do care. only a “reasonable man” statute or adminis from a party be determined ligence of a involved, regulation trative then the trial multiple and evaluation consideration is free its in court to decline to frame process of by the facts and circumstances jury in terms of whether structions care, the con standard of applying, as the provi or not the statute or administrative person. reasonably prudent duct of a sion was violated. In such circumstances adopt deciding to the General pertaining the traditional instructions applicable provisions as the reasonably prudent person Code will suf- behavior, (Second) it 288B(2) Restatement reasonable standard § Torts (1965) provides: may permit in- to be the violation either neg- as relevant The unexcused violation of an evidence enactment troduced may regulation may alto- adopted ligence it exclude issue —or which is not so Meyst Ave. (citing East bearing gether. v. be relevant evidence Fifth on the issue (Alaska Serv., Inc., 430, negligent 435-36 401 P.2d conduct. 1965)). Baxter, 250, v. 16. In Ferrell P.2d Ass’n, Accord, Kodiak Elec. McLinn (Alaska 1971), we said: (Alaska P.2d However, unlikely in the event the court supra. adopt statutory does not command 17. Note man, standard of conduct aof apply reasonable did not to Bachner-Northwest. The necessarily had to follow Act and Code unquestionably did impose the criteria enumerated Section Re- duties on general contractor. (1965). statement Torts (Second) of This more troublesome question is whether those provides: section of the Restatement duties protection extended to the em- ployees of a subcontractor such as Rich. adopt may The court as the standard words, In other purpose was it the of conduct of a reasonable man the re- regulations “. . to protect a class of quirements legislative of a enactment or persons which includes the one in- whose an regulation pur- administrative whose .”, terest invaded . namely, appel- pose is exclusively part found to be or in lee Kenneth Rich? (a) protect persons a class includes the one whose interest is invad- We have already considered purpose ed, and provision of a related of the General Safe- ty Code, 300-20, in (b) State particular v. Marathon protect interest Co., Oil P.2d 293 invaded, 1974). That which is *13 Code, published section of the under the ti- (c) protect to against that interest the tle Requirements”, “General essentially re- kind of harm resulted, which and has the statutory affirms obligation of employ- (d) protect that against interest the ers place to maintain employ- a safe of particular hazard from which the harm ment, use safe processes, methods and and results. do everything reasonably adequate to ren- Appellants argued have that the terms of employment der employees.”18 safe “for the General Safety apply” Code “did not In Marathon the Oil issue was whether general their activities as contractor at the statutorily authorized criminal sanctions McGrath School site. imposed general could be on a contractor provisions promul The Code were resulting for Code violations injury gated statutory to further delineate the employees ob the of subcontractor. ligations 18.60.075(a) general contractor, of AS that Oil, Marathon raised “[a]n employer adopt essentially shall . and argument use the made here: name- processes adequate methods reasonably ly, and provisions that the of the General Safe- employment place to render the ty or of em- are only Code intended to benefit those ployment safe; reasonably and employer-employee in a rela- conventional every thing necessary reasonably do other safety imposed and tionship, the duties protect life, health, safety and only wel- his employer an are owed to those in employees.” question fare of There employ. immediate “employ- that was an Bachner-Northwest expli- rejected argument rather that We er” as term is that the relevant defined citly : 18.60.105; statutory provision, conse- AS interpret Section 300.20 are asked to We quently, appellants they are error when way applicability its in a that would limit contend the terms the Act the Code of and necessary reasonably everything (3) Do provided full : 300-20 § safety protect employees. the life and Every employer employment shall furnish place employment maintain any (4) used are employees Where toxic materials are therein. safe for posted warning signs require any employee be will employer or stored shall No background place less go any employment and red letters not a white or be high. employment than 3 inches which is not safe. neglect employer No shall fail or to: any owner, employer, (1) safety lessee No Provide use devices property safeguards. con- or cause to be shall construct employment place (2) Adopt processes structed use methods and reasonably adequate employ- not safe. to render the employment place ment and safe. scope of the ly implicity nor restricted employees. Such to Marathon’s solely safety by AS 18.60.- general an duties created interpretation would mean an cur- Department of Labor employ- nor did place of make his employer need promulgated scope tail when with- only those who come ment safe specific provisions of the Code. more employees. legal in the definition ones Among provisions were certain safety of those Marathon, According to assembly scaffolding. governing the safe might working be persons who other view, these were intend- provisions our employees premises, such as the site, employees job at the protect all not ed independent contractor would an employ simply those in the immediate employer even responsibility of the contractor, general Bachner-North- prem- of the employer controlled the though the per- west. the work benefited from ises and interpretation a limited formed. Such Code, interpret these scaffold- As we substantially and would not desirable protect a intended to ing provisions were objective principal
weaken employees of persons included class provision. subcontractors, Rich. as Kenneth of Re- criterion Consequently, the first 300.20 directed The focus of Section em- 286 was satisfied. Since place statement of the toward § met, also legal three criteria of were rather than toward other ployment superior court to employ- for the relationship existing it was not error between provisions of performing adopt scaffolding may be er those who pro- statement section as more definitive premises. Code work on supplier duty owed part: care reasonable vides *14 (Second) of a under Restatement chattel any employer, lessee of ‘No owner or Safe- (3965). Torts General § to be property shall construct or cause appel- alter the source of ty Code does.not employment any place of constructed care, duty lants’ to exercise reasonable that is not safe.’ status which remains Bachner-Northwest’s that the intent of conclude Section We chattel, defines supplier the of a but it as require employers is to to furnish 300.20 duty precisely. that more place employment em- safe for all premises.19 ployees may who be on their Appellants’ point final rela Oil, then, decision in Marathon rested Our negligence per se issue that tion to the Safety on the conclusion that the General failing to the court in erred to provision requiring employer Code that struct an excused violation place employment maintain a safe Safety negli not the General Code was employees for the benefit all enacted gence under 288A of section lawfully premises. on On occasion ad Restatement.20 Bachner-Northwest interpretation we our broad reaffirm why it vances three reasons was entitled to legislature express- neither Code. First, an Bach- instruction excuse.21 19. regulation 528 P.2d at (2) 297. the enactment or Unless excuse, permit its not to such construed why appear reasons No record su- violation is excused when perior (a) court refused to as instruct excuse. to is reasonable because the violation practice We incapacity; believe better is for trial the actor’s (b) to state its reasons on the record know neither knows nor should he ruling. compliance; such a the occasion for (c) dili- is unable after reasonable he (Second) comply; gence 21. Restatement to of Torts 288A or care (1965) provides: emergency (d) by an he is confronted (1) misconduct; legislative An excused violation of due to his greater regulation (e) compliance enactment or an involve a administrative would negligence. is not actor or to others. risk of harm to the treating express argues physicians two violations ner-Northwest they opinion that had excused because Kenneth Rich part on their fallen. were compliance with believed were they Mills, treating Dr. Mead Dr. Rich’s pertinent of the Alaska General sections physicians, appellees. testified on behalf of de Safety find this contention Code. We expressed that, Each opinion an based previously not void of merit. As we have upon physical his examination and the his- ed, that Bachner-North- there is evidence tory supplied, Rich had suffered a contu- cus employees following trade west’s were sion of the brain. On cross-examination safe, but thought tom and the scaffold was Bachner-Northwest, hypo- counsel they attempting evidence that were questions propounded thetical were to both comply with terms of the General testimony doctors an effort to elicit Safety next Code. Bachner-Northwest injuries might been caused have contends that violation be was excused something other than Both a contusion. provi ignorant cause it was of the Code testify, stating refused doctors so and, thus, its sions unable comply pa- even absent a fall in evidence of requirements. recognized In McLinn we history, tient’s a brain contusion would an ex ignorance “One form . . as . diagnosis. have been their cases, statutory cuse in these violation examination, On redirect Mills Dr. [namely] party’s is due where a infraction asked, objection: over ignorance operative innocent physician considering As reasonable regulation facts which make statute or events, likely would reasonable ” applicable bar, . at . case under a set of facts to exclude the pro we find scope Safety Code possibility fall, you aof were asked to visions, applicability and their the facts do? case, Thus, of this reject clear. Bach- we respond failed directly Dr. Mills prof ner-Northwest’s second basis for erred question buf, instead, opinion restated Appellants’ excuse. third basis for excuse history on the based which had been is that the provisions General Code him, given to there had been fall. noncompliance sanction when “reasonable subsequent point At the course of safety is thereby particu secured.” More examination, counsel’s redirect Mead Dr. larly, appellants argue that method *15 asked, again objection was over by Bach- by used constructing them the scaffold ner-Northwest : provided rigidity sufficient to allow de parture provi from the cleating Well, Code’s what is the most reasonable— sions. Section 300-20 the General Safe is what the most reasonable inference ty Code noncompliance ap authorizes but man, you, as a considering medical pears require permission to prior to deviate physical history, these facts as would from to, the Code. the Since record does not as come the cause of Kenneth Rich’s prior obtained, permission show that injury, was considering physical the facts? proffered excuse to unavailable responded: Dr. Mead “A fall with a blow consequently Bachner-Northwest. We to the head.” superior conclude that the not err court did Bachner-Northwest contends these in refusing give jury to the instruc any questions, redirect, on improper were tions on of an effect excused violation they invited testify the witnesses to as provisions of the Safety the General an case, to ultimate issue the cause Code. injuries. of Rich’s
Appellants superi- next contend that the We think testimony such was permitting Lester, court abused its discretion in properly admitted. In Adkins v. Ass’n, Inc., 1305, (Alaska 1976). v. McLinn Kodiak Elec. 546 P.2d 1314 446 objection, expert stated that po- 1974), Over 11, (Alaska where
530 P.2d boards, for ac- and a ladder give guardrails, toe had been allowed lice officer accident, Bachner-Northwest cess were order. a traffic opinion the causes of on testimony. relevancy of this challenges the we stated: circumstances, against Bachner-North- expert an Appellees’ case proper Under appellants ul on fact that express opinion on an built may an west was witness constructing scaffold Baxter, negligent in 484 P.2d Ferrell v. were timate issue. walkway on planks Oxenberg failing cleat the 250, (Alaska 1971); by 268-269 pro- by failing to State, 893, (Alaska), top the scaffold v. 362 P.2d 189, required denied, appropriate bracing 368 U.S. S.Ct. vide the cert. necessary as a Code. (1961). It the Alaska L.Ed.2d General testi condition the admission be admissible For evidence '. . could mony only that the relevant, relevant; ev to be it must be appreciable help or assistance receive material to establish a idence must tend expert opinion witness. from of the Carolina Cas proposition. Hartsfield ’ (footnote omitted) Co., 451 P.2d ualty Insurance testimony expert Thus it clear that procured testimony The permissible in some the ultimate issue expert witness as to appellees’ from the circumstances. and toe boards desirability guardrails physicians’ propo Here we that the testi- material find to establish a did not tend possibile mony regarding appel- cause At no time did in this sition case. likely injury provide such as- fixtures Rich’s lack of these that the lees assert jury. opinions ex- tes injury. sistance to The to Rich’s had contributed pressed by Mead did possible improvements Dr. Mills and Dr. were timony these process diagnosing reached had scaffold prove that not tend to Indeed, injuries. opinions ap im- an *were or cleated improperly braced been portant part diagnosis and treatment issue relevant nor was it pellants, qualifications the docto'rs. Given the by Rich. While contributory negligence witnesses, proper we hold that was with broad are vested trial courts Alaska’s permit express opinions their them expert in the area of testim discretion injuries.23 testimony the cause of Rich's con ony,24 we believe that im boards was guardrails and toe cerning Bachner-Northwest further asserts hand, On the other properly admitted.25 admitting court erred in testi- the absence pertaining to testimony mony expert concern- appellees’ witness to the reasonableness relevant a ladder was appellants might ing better methods which “walking” the practice of alleged of Rich’s constructing have the scaffold. utilized not error. scaffold, its admission asked, expert direct witness was have to event, liability will since examination, changes in what additional *16 respect holding of with our retried because he in or- scaffolding the recommend would we contributory negligence question, practice. comply good safety der to is- an ultimate it embraces because tionable 23.It should also be noted that the doctors by fact. trier of be decided sue to Rich fell the scaf- never asserted that from only fold, that there had been fall. Nesbett, City P.2d 607 Fairbanks v. 24. of (Alaska 1967). holding ap- Our is consistent with the parent g., trend of recent E. authorities. McLaney, Compare Co. Otis Elevator Evidence, pro- Rule Federal of Rules 1965), (Alaska it was where 406 P.2d vides : policy evidence to admit error for reasons subsequent improvements accident at an Testimony opinion in the of an form objec- inference otherwise admissible is not site. need not theory, consider whether admission since contributory negligence was guardrail testimony longer toe board con- no an gist issue the case. The prejudicial argument stituted error. was that if even Rich’s con- duct was not negligent, his own activities Appellants also have raised anoth scaffold, and method of utilization relevancy They appeal. er issue this any rather than in the scaf- superior contend that court erred construction, fold’s was the cause his in- failing jury to instruct the that the con juries. tract Bachner-Northwest and To between certainly Bachner-Northwest was enti- tem, employer, Rich’s was not relevant proximate tled to argue issue of cause. any material issue the case. Thus, quite properly, Bachner-Northwest Rich did not contend that he was argued theory its that injuries Rich’s were third-party beneficiary to contract. aby caused thrombosis stroke. It was also The contract was never admitted into evi- permitted argue that Rich had disman- dence, portions but of the contract were scaffold, weakening tled the thereby an read to the jury both counsel. Bach- structure, any solid otherwise so that fall argues jury may ner-Northwest might proximate- he have suffered was not prejudiced by have been testimony this ly by any negligence original caused in the may have concluded that Bachner-North- construction, though questionable even it special west Rich a owed “contractual” whether there was sufficient evidence duty. they From this conclude that the permit clear, argument. It is there- such trial provided court should have fore, that Bachner-Northwest was allowed cautionary with a designed instruction argue alternative theories of causation. prevent consideration of the contract. Further, retrial, upon appellants will have opportunity argue alleged neg- agree We the contract between ligence ques- because determination of n Bachner-Northwest and Totem was irrele- point tion will focal the new trial. However, given relatively vant. minor emphasis trial, it received at evidence Finally, Bachner-Northwest contends contract was so innocuous that er- verdicts, they pertain that the to liabili- failing pro- ror that was committed ty, against weight were of the evi- requested vide the cautionary instruction disagree. dence. We Our discussion of was harmless within the criteria our de- propriety ruling superior of the court’s State, cisions in Love v. P.2d 622 appellants’ motion a directed verdict Lester, (Alaska 1969), and Adkins v. applicable equally here. Viewed its Accordingly, P.2d 11 we entirety, considering in- all reasonable hold error does re- not call therefrom, ferences that be drawn could jury’s appel- versal determination supports than adequately the evidence more liability. lants’ jury. returned the verdicts specifications error, their Bach- conclusion, hold that was we ner-Northwest further contends that to direct error for the superior court by pro- abused its discretion question against appellants verdict arguing them hibiting theory from their contributory negligence. As to of Rich’s jury. specification causation to the This defense, adduced Bachner-Northwest of error is controlled our resolution question to sufficient to take the evidence *17 the contributory negligence issue. The su- is therefore re jury. A trial new perior court refused to allow Bachner- Further, on the effect of quired. retrial argue Northwest what it considered governed possible negligence will be essentially comparative negligence contributory negligence by principles ques- including issues on all the trial State, P.2d in Kaatz v. forth set to so- have decided damages. tion of We Atlantic Sloan 1975). See (Alaska this issue. parties on views of the licit the Co., 546 P.2d Richfield file may serve Therefore, parties however, there re- that, Beyond this issue within briefs simultaneous trial new question whether some mains opinion. days service of after scope question be limited should part. part, reversed Affirmed new be a should there liability, or whether
449 ERWIN, (concurring). (federal, state and local) are proliferating Justice at an incredible rate. issues I concur the treatment of herein, express I but wish to the view The focus of determining the standard re-ex has this court to the time come for reasonable care shifts jury from the negligence per se for judge amine the doctrine of who must rule whether not a regulation as of a regulation violation statute statute or has been violated and Baxter,1 adopted in Ferrell Breitkreutz v. thus the party is guilty negligence per 2 subsequent v. Baker and cases.3 proper se. The label removes the issue jury from consideration. in his dissent Rabinowitz Justice concept Ferrell4 noted that that viola adoption view of the of the doctrine statute, regulation comparative tion of a ordinance or a negligence, I would over- Ferrell, was negligence evidence of was easier rule Breitkreutz and progeny their grasp diffi by jurors presented following fewer the negligence per se standard vantage point judicial announce, culties from the least, at very that in fu- agree, I for the cases con administration. ture cases we would follow the “evidence prob sistently conceptual demonstrate that of negligence” path.
lems when a of statute has arise violation BURKE, (dissenting part, instance, been in the first found while Justice concurring in part). jury in the finding of excuse results that there ultimate determination portion I dissent from that major- of the problem This violation the statute. ity opinion holding that it was error for fact, upon find avoided where the trier of to direct a verdict statute, ing a violation decides that Bachner-Northwest, against on the issue of violation excusable.5 contributory negligence. adopted Re- judge jury under the As court observed in Ben Roach v. initially rule6 is to find a
statement
asked
son,
1392,
503
(Alaska
P.2d
1393
1972):
then
violation
statute or ordinance and
Contributory negligence has been de-
If
categories
to consider the
of excuse.
plaintiff
fined as
conduct
excuse,7
then finds
the violation
falls below the standard to which he
negligence.8
protection
should conform for his own
however,
importantly,
Ra-
legal
More
and which is a
contributing
cause
Justice
empha-
noted
binowitz
that such doctrine
by plaintiff.
harm
suffered
.
jury in
sized the traditional role of the
required
Plaintiff is
to conform his con-
determining the
prudent
standard
reasonable
to that
reasonably
duct
man,
care.
and a failure to do so is contribu-
negligence,
(footnote omitted)
tory
becoming extremely
It is
un-
difficult to
any
Thus, in
case,
dertake
business
vio-
finding
endeavor without
we held that a
lating
regulation,
contributory
and this
dem- of
negligence
clearly
some
case
erro-
problems
onstrates the
with the
neous where our review of the record
per
reg-
se standard in an
where
failed
reveal
era
conduct
unreasonable
part
plaintiff.
government
ulations of
three levels
(Alaska 1971).
Baker,
Breitkreutz
24-
that the contributory negligence is ing of not issues case, Turning to facts I fail plaintiff exposed himself to a whether the reasonably a jury to see how could find harm, his conduct was risk but whether of contributory negligence. guilty Rich unreasonable under the circumstances. record, there was As I view the over- wrote: Prosser The late Dean William whelming that Rich’s habit evidence general, negligence, [Contributory customary, “walking” the scaffold was the and rules is same tests governed among approved required method ta- negligence of defendant. as the Bachner- pers using rolling a scaffold. to plaintiff required is conform foreman admitted Northwest’s own conduct, that of broad standard same customarily use the painters tapers prudence ordinary man of the reasonable “walking” locomotion. method of The unreason- like circumstances. under Hupperton, ex- Richs’ P. G. incurs is he of the risks which ableness there a pert, acknowledging that while weighing process the same judged scaffold, “taping” a safer method from he is importance the interest seek- customary “walking” was the stated that probability, ing against advance why explained prac- He also method. anticipated probable gravity, of the Hupper- necessary. According to tice was himself, omitted) (footnote harm to ton, he taper area can will cover the Accordingly, been held that before it has position in 30 reach from one contributorily a workman can be deemed work, his he seconds. To continue with a safer al negligent failing to follow move scaffold. must then action, it must be ternative course of itself, is, in that the alternative rea shown Maxim, taper, agreed fellow Bob Galloway Employers sonable. v. Mutual customary was the “walking” scaffold Wausau, (La.App.1974) 286 So.2d tapers. His used of locomotion method Negli Am.Jur.2d, As stated in 57 dif- moves time between estimate 2 p. gence 344 at 747: Hupperton; § fered from that of somewhat Maxim, would be according to relocation always chargeable One not with required only every minutes. How- 10 to 20 negligence though does not even he production ever, he would added: “[T]he adopt the and best course to avoid safest nothing you if couldn’t move next inquiry injury, since is not whether up from above. . .” . plaintiff actually the least safe chose courses, he of the avoidable but whether Humphries, agent the business Ben degree failed to of care re- exercise expe- union, years of actual person quired reasonably prudent of a rolling scaf- taping, rience testified (footnotes under circumstances. expedite the work and folding is used to omitted) used typical method locomotion that the A similar statement found 65A “pressure against C.J.S. by tapers is to use pp. Negligence 122at 76-77: § propel himself ceiling the wall Hupper- guilty confirmed along”. He further One taper testimony work in pursuing a that an that a can course conduct or- ton’s only very peri- “a brief dinarily prudent person given choose un- location for would only circumstances, take few od. . It would der the same or similar . Moreover, according tape although open him a it.” there safer seconds Chaney Brupbacher, Prosser, 65, pp. 242 So. 2. also Law Torts 418- See ed.). (La.App.1970). (4th 2d 627 taper important Humphries must continu- It is work to note that there Rich ously : evidence that ever “walked” scaf- carelessly anything fold but usual keep a . either You must wet customary manner. painting taping, you keep a wet sur- *20 know, face, continuity, a nice wet you a that, argues Bachner-Northwest there in joints makes a con- surface. It better perform was no evidence that Rich had to operation. tinuous in apparently his work the manner that he Humphries foregoing, In addition to the did, points that under his the fact gave following questioned answer when agreement right union had the he leave Luce, by attorneys: appellees’ one of prac- Mr. any equipment or job where unsafe suggested tices is were It utilized. Humphries, MR. Mr. would LUCE: job Rich could have insisted that the be jobs if your keep able to their men be differently. argument done I find such an rolling utilizing insisted . . a they . unpersuasive. moving scaffold, getting down and they time wanted hand each every Almost endeavor carries human move the scaffold? some risk of harm to or the actor others. No, they wouldn’t And, any MR. HUMPHRIES: type almost conduct could be keep job. is the name their Production altered to reduce But the risks involved. game in plaintiff construction work. engages the fact that a in conduct greater harm that carries a risk of than factor, evaluating in more the rea- One some alternative form of conduct does not conduct, is the fact sonableness of is necessarily acting mean that he or she a equipped that the was not scaffold regard due for his or her own without dismounting from ladder for mounting safety. particularly This would seem to be working stage or surface which where, case, true conduct ground. six feet approximately above the practice of customary a conforms Regulation provides: Safety 318-79 Code trade, apparently particular involves ground from the Where distance per- if no risk the workman undue platform pole to the lower of a scaffold expect proper To equipment. formed with feet, than five access to the (S) more to demand a workman that situation runway platform in a or the form of differently or to that the work be done ex- provided. be ladder shall job merely because pect him leave the opinion foregoing, I am of Given permit him to do might his union contract people but one that reasonable could reach so, expecting too much. per- conclusion this case: that Rich was presum- while summary, majority, his of a rea- forming work the manner standard, man” applying a “reasonable ably person, utilizing prudent sonable and envision that rather remarkable seems to walking method of locomotion. Faced man”, fellow, as he was “reasonable with the limited alternatives that were Herbert, who wrote: described A. P. him, position a workman in the available ideal, standard, expected embodi- reasonably of Rich not could is an a He scaffold, de- hav- which we qualities from a six foot all those dismount ment of ladder, completed a . . . He ing every good citizen. time he mand of he is taping work, invariably looks where few minutes of unlock is one who scaffold, the im- wheels, examine going, relock careful to move a executes wheels, foreground an- he before then remount scaffold mediate stargazes bound; short, neither leap who minutes work. other few approach- when is lost meditation expect suggested alterna- nor him to utilize the dock; margin of trapdoors or the ing unreasonable tive form of locomotion is moving mounts who never under the circumstances. per se, appellees argued appel- alight gence not from and does omnibus comply regula- . lants’ failure to with these is in motion . . car the train while as mat- history tions established their inform himself and will administering ter law. dog of a before habits his caress; never drives . who however, record, discloses Review the def- of him have ball those front until appellees rely not did exclusively putting-green which initely vacated the They alleged regulations. breach of the from objective; never his who own duty further contended that of due year’s an ex- one to another makes end required appellants care to affix to wife, neigh- upon his demand his cessive specifical- scaffold other devices ass; bors, ox, servants, his his ly required by the Code. General swears, gambles . who never Although relatively evidence and little *21 nothing ex- temper; uses loses his who ap- aspect of argument devoted to this he cept moderation, even in while in pellees’ theory due care was case, this meditating flogs only his child trial. raised during fact course golden mean.3 Thus, opinion previous in statement our that no in this case to the effect perhaps “[a]t It to me we should seems that appellees did assert that the lack of time expect less the circumstances little under these fixtures had to Rich’s contributed case. shown the record this injury” is incorrect.1 respects I In all other concur. piece One of evidence which was offered bearing on this contention was the testimo OPINION ON REHEARING ny appellees’ expert witness. desirability That testified as witness petitioned Appellees have boards, guardrails and toe which were de of one issue. We have reconsideration supplied not affixed the scaffold to Rich. grant petition in order termined to was, course, testimony That relevant appeared correct a factual error which required that care the contention due Rich. Bachner v. placement safety features not ex of certain liability pressly argu Appellees’ theory mandated the code. Scant duty presented as appellants Rich a ment was to the manner owed Kenneth guardrails which the failure to care the construc have or toe to exercise reasonable proximately they supplied boards contributed to Rich’s tion of scaffold injuries. presented Rich, appellants’ of that A borderline case breach testimony re injuries. whether such was relevant in duty proximately caused gard establishing proximate court, such a cause. appellees emphasized In the rules, however, prescribe that in such Our provisions certain of the General principle recep cases “the which favors applicable to construction of Code scaf 2 Thus, govern.” tion of the evidence shall provisions governed folds. These we have concluded it was not error to scaf proper cleating bracing of such testimony. admit negli- upon principles of Relying folds. opening page appellants’ brief, Herbert, Misleading 1. At 52 of
3. A. P. Cases following pp. (1930). per- Law, statement is found: “At time no 11-16 It Common plaintiffs allege haps did that Rich fell from further also worthwhile to note Herbert’s scaffold because of failure of defendants that: “In all au- observation mass of guardrails, upon to build scaffold toe thorities which bears this branch of ingress.” egress single boards a ladder law mention reason- there is of a quotations Id. able at 16. These woman.” 43(b). appear Prosser, 2. Alaska also The Law of Torts R.Civ.P. (4th 150-161, ed.). pp. 32 at note