*1 1193 рro efforts to Stephanie's and for Terrance compliance with to their respect parents with economicallyfor her children. vide Ste agreements." orders or support . "(whether a correctly points out phanie CONCLUSION not, v. parent '[a]l or exists
support order at commonlaw and by statute obligated both that the Stephanie has not shown Because 21But the children'" his or her support findings on the sexual abuse superior court's 25.20.110(b) narrow; AS purpose of erroneous, AFFIRM clearly we were issue or court orders noncompliance with counts finding that Terrance superior court's noneompli- against voluntary agreements sexually abused Maxwell. had not been case, custody. In this seeks parent ant who not err in its superior court did Because the support or subject to a never Maxwell bonds, sibling we AFFIRM consideration Therefore, not a he is agreement. der in this re- superior court's conclusion custody seeking noncompliantparent custody issue spect. But we REMAND custody to the deter important issue was not of the best interests for a new consideration mination. (1) respects: Because in two of the child allegations of sexual Stephanie brought her un obligations Although Maxwell's faith, RE- good we against Maxwell abuse 25.20.110(b) relevant were not der AS "close and of the for reconsideration MAND determination, are troubled custody we in accordance relationship" factor continuing eco more stable on Maxwell's reliance (2) because the court opinion; this long Stephanie's compared to status nomic obligation ongoing Maxwell's did not discuss ig working hours while hard commute Terrance, REMAND for con- support than pay more failure noring Maxwell's stability continuity and fac- of the sideration of his $3,800 the course support over child opinion. this tor in accordancewith Here, court superior child's life. trip round Stephanie's 140-mile weighed Justice, participating. CHRISTEN, weekly 12-hour shifts four and her commute (from p.m.) against her to 6:00 6:00 a.m. factor, determining stability
reviewing the very hard on "[was] schedule
that her work them, roadblocks provide{d] some
all of the kids on working with of her terms Max and the like." Given homework likely a suppоrt was pay child
well's failure Stephanie's grueling contributing factor to Martin MICKEL OF Shawn ESTATE schedule, superi- puzzled by the we are work Administrator, Yong Ae Its SEN "cir Stephanie's conclusion that or court's MICKELSEN, Appellant, fluid, as the children are more cumstances of time significant amount spend have to v. [Ste accommodate away their home to FOODS, INC. and S NORTH-WEND the stabili
phanie's] work schedule" LLC, Appellees. Properties, & S favors ty [Maxwell.]" factor "therefore No. S-13482. statutory and com general parent A has a light a child.22 mon law of Alaska. Supreme Court obligation, we remand 27, 2012. April continuity and stabili court to reconsider failure of Maxwell's ty taking account factor monetary support any meaningful provide eg., Benson, v. see, Benson Id. 25.20.030; 22. AS 1999). 88, (Alaska P.2d (Alaska Crayton, Crayton 1997) Matthews, (quoting Matthews 1987)).
1195 *2 complaint, hold-
superior court dismissed guard had no ing that the restaurant of third the conduct against risks- created read liberal- parties. Because action, a cause of we reverse ly, stated *3 remand for court and decision of opin- proceedings consistent with further ion. AND
II. FACTS PROCEEDINGS A. Facts1 Hamburger Wendy's Old Fashioned corner of sits on the northwest Restaurant Boulevard in Fifth Avenue and Reeve East land are Anchorage. The building and Properties, LLC and the by S & S owned operated by North- is restaurant lessee Foods, only legal Inc. There is one Wend to access entrance for customers vehicles restaurant; that entrance located on legal There are two exits Reеve Boulevard. Choate, Juneau, Appellant. for Mark Wendy's; can leaving vehicles for vehicles eurb-cut either via the same as Graves, P.C., Farley, Farley L. Laura entrance, via a Boulevard curb-cut Reeve Appellees. Anchorage, for The East Fifth Ave on East Fifth Avenue. designed intended or as an nue exit was not CARPENETI, Justice, Chief Before: entering Wendy's WINFREE, STOWERS, point access vehicles FABE, Instead, Fifth Avenue. it is used from East Justices. visiting the exiting after by vehicles drive-through window. OPINION Generally, person driving eastbound on CARPENETI, Justice. Chief to enter Wen- Fifth Avenue who East wants I. INTRODUCTION turning left onto so first dy's must do using the Reeve and then make an attempted to An eastbound driver Reeve Boulevard However, an eastbound entrance. Boulevard a restaurant's exit drive- Megal left turn into also East Fifth Avenue could an driver on driver collided with way. The eastbound and enter Wen- driver, to take a "short-cut" killing the west- choose oncoming westbound sued The decedent's estate curb-cut dy's via the East Fifth Avenue driver. bound death, arguing making an turn, crossing wrongful illegal left restaurant for the dou- line, crossing two lanes of negligent creating was that the restaurant ble-yellow give short-cut would failing traffic. This land and dangerous condition on its westbound safe, one-way wrong-way access to the driver steps make the condition to take building to driveway around the circles warning drivers not example, by eastbound the width lot. parking Because driveway in this manner. the exit to use argument None of on the dismissal motion. mainly oral from Mickelsen's facts are taken These any facts is inconsistent with plaintiff's these latter allegations complaint. Factual purposes Accordingly, to be true for allegations are assumed the, resolving under Alaska Civil a motion to dismiss obligation pursuant to the consider them 12(b)(6). Enters. v. See J & L Rule court, sufficiency passing of a com- Diversified on Anchorage, Municipality plaint, inferences in favor to draw all reasonable 1987). are also taken from Some facts accom- complainant. note 3 and See of the infra photographs of the collision our observations panying text. provided superior court at sitе Mickelsen only accommodates of the eurb-cut one vehi- asserted "nothing [its] time, cle at a drivers must often roll one tire caused or contributed to the accident" and completing over the raised curb the short- "any Mickelsen had not identified condi cut maneuver. customers use this tion [Wendy's] controlled that was uns basis, regular something short-cut on afe.". readily can be observed inside the res- Superior Judge Court Peter A. Michalski taurant. argument heard oral on the motion. At vari- 27, 2006, Hayward On March Lawrence W. points argument, ous in the Mickelsen identi- driving pick-up truck eastbound on gave fied the condition which rise when he attempted East Fifth Avenue to use Wendy's duty of care as the "exit that Haywаrd enter the short-cut to As entry," used "the use of that exit as an *4 lanes, crossing the westbound traffic ingress point," and the exit which "attracts motorcycle by 'driven westbound Shawn entry. drivers" to use it an as Mickelsen pick-up with the Mickelsencollided truck. also asserted that danger- the curb-cut was injuries as a result of Mickelsen died he "poor design" ous because of and that Wen- received the collision. dy's remedy could problem by either closing affixing Entry" the exit or sign. "No Proceedings B. argued Mickelsen that duty owed a ("Mickel In March 2008 Mickelsen's estate of care to all westbound drivers "[nJot to sen") wrongful brought death action create a condition which would cause vehicles against Properties landowner S & S pull path property. across their into" the lessee (collectively Foods North-Wend Following argument, Judge oral Michalski "Wendy's"). complaint Mickelsen's asserted granted Wendy's motion to dismiss the com- that use of the 5th Avenue "[the exit as a 12(b)(6) plaint under Civil Rule entry because "the short-cut to the Restaurant complaint only alleges wrongful by acts a structure or artificial condition third posed that parties an and conditions par- unreasonable risk of harm created third to west-bound ties," Avenue," wrongful and not traffic on 5th that acts or knew or conditions created Wendy's. should have known of The court explained: condi- tion, "failure to action take general rule, As a landowners have a make this condition safe" awas guard to use due against care to breach of its of care and a substantial unreasonable risks created factor in Mickelsen's death. existing property. conditions on their The Wendy's moved to complaint dismiss the condition, however, "does not include the 12(b)(6) under Alaska Civil Rule for failure to parties." conduct of third upon state a claim which relief could be complaint alleges[:] Mickelsen's "The granted. Wendy's argued that it had "no use of the 5th Avenue exit as a short-cut legal duty ... to control the actions of third to the is a Restaurant parties or to car or im accidents structure or posed artificial condition that proрer driving." opposed Mickelsen the mo an unreasonable risk of harm to west tion, arguing possessors that "[als of land on bound traffic on 5th Avenue." The com which operated adjacent a business is to a plaint allege does not design busy thoroughfare [Wendy's] had a ... the entrance and exits in themselves are of care not to let conditions on their dangerous or that defendants failed to create an unreasonable risk of harm pass properly designate the entrances and exits ing motorists." Mickelsen also asserted that property.[2] Avenue, from East Fifth "there is visible no Following grant [the East Fifth Avenue curb- its motion to indication only, dismiss, cut] is meant an as and {[it] can court entered а final easily be judgment misconstrued entrance." In in favor of its reply to opposition, Wendy's appeals. formatting original quotation of the been altered and citations have been omitted. OF REVIEW not make reasonable inferences his
III. STANDARD
did
favor,
interpre-
on a narrow
"focuse[d]
appeal
considering an
pled
support
of the facts Mickelsen
tation"
12(b)(6),
apply
CivilRule
under
dismissal
Wendy's duty of care.
allega
review,
all factual
presuming
de novo
making
complaintto be true
tions of
above,
testing
As
non-moving
eourt
noted
of the
inferences
favor
all reasonable
12(b)(6)
sufficiency
complaint
of a
under Rule
a motion for
"To survive
part
y.3
allegations
complaint
in the
all
must presume
12(b)(6),
enough
it is
under Rule
dismissal
all
true and must draw
reasonable
to be
allegations
forth
complaint set
complainant.7
in favor of the
Be
inferences
appropriate to some
with and
fact consistent
construed,
liberally
complaints must be
af
of action."4 We will
cause
enforceable
cause
12(b)(6) are
motions to dismiss under Rule
prove
can
only if the
firm dismissal
rarely
granted.8
and should
disfavored
claim
of his
of facts
no set
survive,
To
him to relief.5
entitle
would
only
allege a set of facts
[a]
need
and extent of
The existence
appropriate to some
"consistent with
de
questions of law which we decide
care
Therefore,
enforceable
of action."
cause.
novo,
judgment
using
independent.
our
*5
for fail
complaint should
be dismissed
persuasive
of law that is most
adopt the rule
appears
ure to
a claim unless it.
state
reason,
policy.6
precedent,
and
light
of
plaintiff
prove
beyond doubt
the
can
that
DISCUSSION
IV.
of the claims that
no set of facts
relief.[9]
entitlethe
would
superior
argues that the
first
Mickelsen
incorrectly
the law
by
applying
court erred
Here, citing
City
Bor
Schumacher
Rule
motions to dismiss under
pertaining to
ough Yakutat
for the rule that landown
12(b)(6).
argues
superior
He then
that
the
protect
from risks
ers have no
others
concluding
as a matter of law
court erred
by
parties,11the
created
the conduct оf third
Mickelsen,
duty to
and
Wendy's owed no
that
superior court concludedthat Mickelsen had
complaint
of his
therefore the dismissal
that
complaint
a valid claim
his
not stated
because
arguments
address these
improper. We
was
wrongful
parties
"only alleges
acts
third
in turn.
parties,
conditions
third
created
defendants,"
allege that
and "does not
Reading
Superior
<Of
The
Court's
A.
entranceand exitsin them
design
ofthe
Unduly
Complaint
Narrow.
Was
or that defendants
dangerous
selves are
argues
superior
that
court
designate the entrances
properly
failed to
testing
incorrectly applied the law
property."
agree
and exits
We
complaint under Rule
sufficiency of his
reading
court's
Mickelsen that
12(b)(6).
argues that
the su-
Specifically, he
unduly narrow.
complaint
presume
it did not
perior court erred because
complaint, Mickelsen's
allegations in his
complaint
truth of the
the follow-
contains
assertions,
ing allegations:
it
of his factual
ignored
some
supra
accompanying
3 and
text.
7. See
note
544, 547
Servs.,
Tomter,
Inc. v.
139 P.3d
3.
J & S
2006).
(Alaska
Res.,
State, Dep't
Angnabooguk v.
Natural
8.
omitted).
(internal
marks
4.
Id.
quotation
447,
(Alaska 2001).
Forestry,
Div.
5.
Id.
omitted).
(emphasis
added and citation
9.
Id.
Sandsness, 72 P.3d
6. State v.
2003);
Serv. Area
Peninsula Rd. Maint.
N. Kenai
(Alaska 1997).
10.
that conclusion.15 RE. lines of cases. of a not on Wendy's argues that the current case falls The existence turns case, given particularized facts of but cases, existing within two lines of both of rather on the "basic nature of the relation which would lead to the conclusion that no ship parties between the to the cause of duty of care exists: the Schumacher20line of Here, parties action."16 use different cases and the R.E.21 line of cases. We dis relationship. terms to define that basic In cuss both turn. view, operative relationship general The rule of landowner labil highway-adjacent is between a commercial ity by as established our case law is that regularly property owner whose customers "duty landowners have to use due care to property high gain to the from that access guard against by unreasonable risks created way, may put and the other motorists who be existing property." conditions on their рroperty "gov at risk owner's active parties disagree on whether 22 ernance of the access of those customers." alleged amounting facts to the view, operative relationship a "dangerous existence of condition"on Wen a passive is between owner and the dy's property meaning within the may of that put motorists who be at risk (the Wendy's argues rule. negligent parties" "third that no exists po conduct of adjacent patrons) public tential on the streets because this case is controlled Schumach Yakutat,23 City Borough er v. property. held that "the definition of 'conditions' process a three-step We use to de may required landowners protect First, terminе whether a of care exists. against does not include the conduct of third duty imposed by we look for a statute.17 If *7 24 parties." exists, none if we then determine the current Schumacher, in by injured case falls the class of cases controlled In a child was when existing precedent.18 closely sledding If no related he a car collided with while down a deciding negligence
in
whether a
be
action can
weigh
class,
law covers
we then
the factors
State,
(quoting Kooly
oppose
imposition
maintained."
958 P.2d
that
the
of liabili-
1106,
(Alaska 1998))).
1108
ty.”).
Determining
legal duty
15.
whether a
a
exists is
Yakutat,
City Borough
20. Schumacher v.
&
946
of
question
by
of law for determination
the court.
(Alaska 1997).
P.2d 1255
supra
accompanying
6
See
note
text.
State,
(Alaska 1994).
21. R.E. v.
this court should
condition it has
harm caused
of another's
who is aware
merely
dangerous condi
because the
created
self-destructive
behavior,
ability
any
prevent
to
that
participation
requires
tion
third
also
behavior,
injured par
to save the
and fails
party.
own conduct. Such
ty from his or her
сity in
It
also relevant
that
Schu-
is
negli
holding
transform the law
would
providing
business of
macher was not
whereby
may
person
means
gence from a
sledding
safe
on its streets.
is
danger
caused
for losses
recover
providing
the business of
and exit to
behavior cre
another's unreasonable
which
Holding that a
its customers.
business has
ated,
permitting persons
to a mechanism
operations
its core
to conduct one of
injured by
compel
their own conduct
not involve the transfor-
a safe manner does
that conduct to
any
failed to
who
negligence
mation of
law of
that
would
negligence.
share the burdens of their
We
Schumacher,
result.[28]
held,
had
have resulted
we
permit
such a
decline
city
protect
that
had a
all who
ex
also noted that "other courts have
We
harming
entered its land from
themselves
activity"
pressly
party
third
from
excluded
"
through self-destructive behavior.
that land
the definition of the
conditions'
may
required
protect
owners
We thus conclude
the current case
against."
line of
controlled
Schumacher
distinguishable
from the
Schumacher
cases.
present case. The individualwho caused the
Next, Wendy's argues that
this case falls
injury to the child in Schumacher was the
cases,
into
R.E.31
class
case,
present
child himself.
In the
Mickelsen
(Second)
applied Restatement
of Torts
have
allege
should be held
does
through
320 to determine wheth
sections
failing
prоtect
liable for
Mickelsen
protect
er the defendant had a
his own
actions. Nor does Mick-
party's dangerous
from a third
condu
interpreted it in
elsen's
as we
section, allege Wendy's
previous
should
ct.32
314 contains the traditional
Section
general
failing
protect
be held liable for
common-law rule that
there is no
*8
25.
Id. at 1256.
generally
property,
on
and does not
activities
criminal,
negligent
encompass
wrongful,
or
State,
Kooly
persons.")).
conduct of third
v.
26.
Id.
(Alaska 1998),
1201 safeguard others from foreseeable duty to attempt in an is essence to determine require controlling equitable that would harm when whether it would be fair and to person warning or of the conduct of another require specified ... an individual to act provides that 815 such conduct.33 Sеction manner undue of so as avoid risk harm to the conduct of is "no so to control persons." third there Because current case him from caus person a third as presents significantly different set of "con ... ing harm to another unless physical considerations, flicting policies" and other we exists between the actor special relation conclude that the current case is not con imposes duty upon person the third R.E. trolled class of cases. person's con the actor to control third Wendy's argues that under these duct." prece- 2. This case is controlled our standards, it had to control the con no dent in Webb. adjacent the road to its duct of drivers on apрeal primarily Mickelsen's relies if it foreseeable to Wen property, even (Second) Hayward on the Restatement of Torts section dy's posed that a driver like a risk establishing Wendy's duty 864 as of care. physical passing harm to a motorist like of previously recognized We have not the see Mickelsen. controlling tion 864 standard as and no Alas responds that the current case previously ka case has cited it. It is unnec of belong to the R.E. class cases does essary adopt us Restatement because of the marked differences between case because our decision in Webb v. In each of the those cases and this one. City Borough provides Sitka contrоl cases, government entity the defendant was a ling precedent. existing Where Alaska case party third conduct at and the provides adequate grounds deciding law eriminal behavior.34 issue was intentional issue, judicial economy argues in favor of Here, proper the defendant is a commercial relying grounds on those adopt rather than ty party and the third con owner ing a new rule in order to reach the same negligent driving of the defen duct was result. agree third-party dant's customer. We Mickelsen that the current case does not Webb established that landowner or "[a] belong Although the R.L. class cases. property owner of other must act as a rea decided that the Rеstatement sections person maintaining sonable his optimal stated the rule of law in the class of reasonably safe condition view of all of involving government's duty pro cases circumstances, including the likelihood of potential vietims from the criminal tect con others, injury inju the seriousness of the parties, it duct of third does not follow that ry, respective parties and the burden on the adopted
we have
the sections
wholesale
avoiding
the risk."
regard
without
to context.
have said
We
According
"[the
process
finding
that "the
that a defendant
use of the 5th
exit as a
owes a
to a
is one which in
Avenue
short-cut
conflicting
balancing
policies;
volves fine
...
... artificial condition that
aln]
R.E.,
(citing
Busby Municipality
Anchorage,
at 1348
P.2d
Restatement
(SEconp)
(''The
§
or Torts
fact that the actor
(Alaska 1987).
230, 232-33
part
realizes or should realize that action on his
necessary
protection
for another's aid or
does
(Alaska 1977), superseded
36.
were
parties
Hayward
taking
such as
Because,
liberally,
allegations
read
else,
Wendy's,
nothing
might
if
short-cut.
action,
state a cause of
design
have altered the
of the
Avenue
Fifth
superior
REVERSE the
court's order of dis-
posted
warnings.
exit or
more effective
proceed-
missal and REMAND for further
steps
Whether
failure to take such
ings
opinion.
consistent with this
unreasonable,
and whether
it breached
duty,
questions
us at this
its
before
CHRISTEN, Justice,
participating.
stage of the case.
STOWERS,Justice, dissenting.
sum, Wendy's
duty
had a
un
property
maintain
der Webb
its
a rеa
STOWERS, Justice, dissenting.
sonably safe manner in view of all relevant
disagree
opinion.
I
the court's
I
duty applied to
cireumstances. This
those
entering
exiting Wendy's
and to those would affirm the
court's dismissal in
I
favor
do not believe that
might
entering
who
be affected
those
duty."
38. The
Hosp.
dissent asserts that Mickelsen had "no
Id. at 517.
In Lutheran
Blaser,
(that
(Ind.App.
Ind.
634 N.E.2d
is,
connection
he was not a
1994),
merely
customer of
but
an innocent
the court concluded that because a busi
past
invitees,
person driving
public
the restaurant on a
ness "knew the manner
in which its
person
drivers,
highway
illegal
when another
made an
pedestrians,
customarily
both
used
...),"
'exit',
turn in front of him
but this formulation
driveway
[was]
...
under a
minimizes the connection betweеn
duty
to correct
conditions and
roadway
Mickelsen. Mickelsen was on a
imme-
guard against
injuries."
foreseeable
diately adjacent Wendy's property
and was
killed when a
collided with
customer
speculates
39. The dissent
about how this case
allegedly
Wendy's defectively
him
result of
proceed
future-hypothesizing
will
designed improvements.
filed,
third-party complaint will be
that at trial
apportioned
third-party
fault will be
defen-
Other courts have reached similar conclusions
nothing
dant,
that Mickelsen's
estate will recover
involving
driveways
cases
used as busi-
fees,
but will be Hable for costs and
safeguards
adequate
ness entrances without
.
ruling
accomplish
the court's
will
is to
"[all
warnings.
Indus.,
In Boudreaux
v. Sonic
Inc.,
increase
costs on
it is
unnecessary
society""-but
(Okla.App.1986),
this court should of another's self-destructive
who is aware
behavior, ability any
behavior, injured par and fails to save the
ty from his or her own conduct. Such negli-
holding would transform the law of Thus, ruling likely hugely litigation also driver in this case. the court's will 1. Such would Now that the case is remanded for (if wasteful. injured innocents not advance the interests of thing proceedings, accurate, further I assume that the first my prognostication anything, if third-party complaint will do is file a likely only up innocent will end against Hayward, apportionment fault Wendy's, receiving compensation from but will illegal driver who made the turn caused attorney's fees if Wen owe its costs and trial, jury be asked to collision. At will dy's prevails apportionment on its of fault de fault, entirely apportion and it is foreseeable that fense). ruling accomplish All the court's will apportioned wholly very large or in fault will be unnecessary society. to increase costs on percentage Hayward. Businesses like Wen dy's litigating will bear the costs of cases like this (Alaska 1997) (emphasis 2. 946 P.2d one, compen but there will be little likelihood of deleted). injured killed sation for those who Hayward, illegal people acts of like the scofflaw