David HURN, as parent and next best friend of Minor Children, D.H. and P.H., Appellant, v. Simone GREENWAY, Appellee.
No. S-14343.
Supreme Court of Alaska.
Feb. 8, 2013.
FABE, Justice.
E. Heynen‘s Argument Concerning Admission Of Her Medical Records Is Moot.
Heynen argues that the superior court abused its discretion in admitting her medical records from the 1980s and 1990s, when she was involved in multiple car accidents. This evidence might have been relevant in the jury‘s assessment of causation or damages had it found that Julene was negligent. Because it returned a verdict of no negligence, however, this point is moot. We therefore decline to reach it.
V. CONCLUSION
We AFFIRM the decisions of the superior court.
CHRISTEN, Justice, not participating.
(Alaska 1983) (noting that employers are ordinarily not liable for the torts of independent contractors).
It is also irrelevant that Kosters was deceased and had no estate. Kosters’ estate was not exempt from liability, and there is no rule stating that judgment-proof individuals cannot be tort defendants.
Barry J. Kell, Call, Hanson & Kell, P.C., Anchorage, for Appellee.
Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.
OPINION
FABE, Justice.
I. INTRODUCTION
Simone Greenway and her friend Carrie Randall-Evans were dancing together in a suggestive manner and teasing Jeffrey Evans, Carrie‘s husband, when Jeffrey left the room, returned with a pistol, and shot everyone inside, killing Carrie. He then shot and killed himself. David Hurn, the father of Carrie‘s two minor children, sued, claiming that Greenway‘s participation in the dance was negligent either because it breached her duty as homeowner to control her guests or because it created a foreseeable and unreasonable risk of violence. Greenway moved for summary judgment. Because property owners generally have no duty to control the conduct of third parties in their homes, and because murder was not the foreseeable result of suggestive dancing, we decline to hold Greenway liable.
II. FACTS AND PROCEEDINGS
A. Facts1
Simone Greenway met Carrie Randall-Evans in the summer of 2006 at a mutual
Two months later, Greenway met Jeffrey while at a bar with her ex-husband. While at the bar, Jeffrey insulted Carrie, saying she was “no good, and she was a tramp, and he didn‘t understand why she had her job and he didn‘t.” Jeffrey threatened to “beat the living shit” out of Carrie if she did not send him money, and Greenway felt that Carrie was “a bit threatened by him.” Greenway saw Jeffrey on a few more occasions, but did not have an extensive relationship with him and only saw him incidentally when she was with her ex-husband. Greenway said that during these occasions Jeffrey was always “bad-mouthing” Carrie and would threaten “to beat the shit out of her.” But prior to the murder, Greenway had never witnessed Jeffrey become violent or threaten to shoot Carrie.
On the day of the murder, Greenway met with her ex-husband again, who asked her to give Jeffrey a ride home. Jeffrey asked if they could pick up Carrie, who had recently returned from a trip to San Antonio, Texas, and Greenway agreed. While in the car, Carrie showed Jeffrey her necklace and said, “[L]ook what my sugar daddy got me.” Greenway immediately looked to Jeffrey because it was a “very uncomfortable situation.” Jeffrey‘s expression was “stone cold.” Carrie then asked to go to Greenway‘s house. Greenway agreed and called her friend, Bill Anthony, who was at the house, and asked him to start preparing some moose meat. Carrie, Greenway, and Jeffrey began drinking, and Anthony went home.
Throughout the evening, Carrie and Jeffrey went to the back bedroom and bathroom alone, and Carrie did not appear afraid. Later, Carrie and Greenway sat at one end of the couch and held hands; Carrie appeared afraid but did not discuss why. Greenway said that Carrie sat next to her “like she wanted [Greenway] to protect her.” Jeffrey asked Carrie and Greenway, “[W]hat would you girls do if somebody came in that door right now, after you?” Carrie and Greenway gave each other a high five and said, “[W]e‘d kick his ass.”
Carrie and Greenway began sparring, and the sparring turned to dancing. While dancing, Greenway and Carrie kissed and touched each other. Greenway acknowledged that they were “laughing and joking and making fun out of [Jeffrey]” and that she was teasing Jeffrey “on purpose,” with the intent of punishing him “because he was a jealous man.” Greenway said that while she was laughing at Jeffrey she was attempting to express to Carrie the nonverbal message that “you don‘t have to be afraid. . . . [T]his my domain, you don‘t have to be afraid here.” While being teased, Jeffrey “had no emotion, showed none whatsoever. He was stone cold, no emotion.”
Jeffrey left the room and Carrie left for the bathroom. Jeffrey returned with a gun. Greenway did not know that Jeffrey had brought a gun, and she did not keep guns in her home. Jeffrey shot Greenway, who fell to the floor. Anthony, who had rejoined the gathering earlier, entered the room, and Jeffrey shot him five times. Jeffrey went to Greenway, knelt beside her, showed Greenway her car keys in one hand, and shot her again in the chest. Jeffrey then ran after Carrie and shot her three times, including once in the back of the head, killing her. Jeffrey then turned the gun on himself and killed himself. Greenway survived the attack.
B. Proceedings
David Hurn, the father of Carrie‘s two minor children, brought suit on their behalf against Jeffrey Evans‘s estate and Simone Greenway, seeking damages for Carrie‘s murder. Jeffrey‘s estate settled.2 Regard-
Greenway filed a motion for summary judgment, arguing that she did not cause Carrie‘s murder and that she owed no duty to prevent Jeffrey from murdering Carrie. The superior court granted the motion, and Hurn appeals that decision.
III. STANDARD OF REVIEW
We are asked to review a grant of summary judgment and to determine the existence and extent of a duty of care. These are questions of law, which we review de novo.3
IV. DISCUSSION
“In reviewing a grant of summary judgment, this court must determine whether any genuine issue of material fact exists and whether on the established facts the moving party is entitled to judgment as a matter of law.”4 When determining the existence of a duty of care, summary judgment is appropriate where “the only reasonable inference from the undisputed facts is that one party owed another no duty whatsoever—or owed a duty clearly and vastly narrower in scope than the one that the other party asserts.”5 Greenway argues that Hurn has alleged no facts that would give rise to a duty to refrain from her dance with Carrie. Hurn responds that Greenway had such a duty either be-
A. Greenway Did Not Have A Special Relationship With Carrie Or Jeffrey That Would Give Rise To A Duty.
Generally, a person has no duty to protect others from harm by a third party.6 But the Restatement (Second) of Torts § 315 recognizes such a duty if there is a special relationship between the parties:
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person‘s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.7
Hurn argues that Greenway had a special relationship with both Jeffrey and Carrie because Greenway owned the property and Jeffrey and Carrie were invitees. But Alaska has abolished the common law distinction between licensees, invitees, and trespassers.8 Instead, a landowner has a general duty to “act as a reasonable person in maintaining his property in a reasonably safe condition in view of all the circumstances.”9 This generally does not include the duty to control guests in the home. In Schumacher v. City & Borough of Yakutat, we held that “landowners have a duty to use due care to guard against unreasonable risks created by dangerous conditions existing on their prop-
B. Greenway Did Not Have A Duty Not To Provoke Jeffrey.
Hurn argues that Greenway had a duty not to provoke Jeffrey by dancing seductively with his wife. The Restatement (Second) of Torts § 302B would hold actors liable if they unreasonably increased the risk of crime:
An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.12
In such a case, the criminal act is not an intervening cause that would sever liability.13
Unlike § 315, we have never adopted § 302B.14 We do not decide today whether
1. If § 302B is controlling in Alaska, it would not support liability in this case.
a. The text of the Restatement does not support liability.
The text and comments of § 302B do not support the imposition of a duty. Comment d makes it clear that an actor is responsible for the crimes of third parties only in unusual circumstances:
Normally the actor has much less reason to anticipate intentional misconduct than he has to anticipate negligence. In the ordinary case he may reasonably proceed upon the assumption that others will not interfere in a manner intended to cause harm to anyone. This is true particularly where the intentional conduct is a crime, since under ordinary circumstances it may reasonably be assumed that no one will violate the criminal law.15
Comment e creates an exception to this rule “where the actor‘s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account.”16 Hurn argues that Greenway‘s dance created this “recognizable high degree of risk.” But the illus-
The Restatement gives four examples of affirmative acts sufficient to sustain liability under § 302B for the criminal acts of another:17
- The actor takes affirmative steps to defeat a protection the victim placed around his person or property;
- The actor brings the victim and criminal into contact with each other under circumstances which afford a great opportunity for misconduct;
- The actor provides the instrument of the crime to the criminal; or
- The actor “acts with knowledge of peculiar conditions which create a high degree of risk of intentional misconduct.”18
The list is not exhaustive, but these examples indicate that “affirmative act” in comment e refers to substantial misfeasance that unmistakably points toward culpability. The only two categories into which Greenway‘s dance could possibly fit are the second and fourth: bringing the victim and criminal into contact with each other and acting “with knowledge of peculiar conditions which create a high degree of risk of intentional misconduct.” As to the second category, Hurn conceded at oral argument before us that simply driving Carrie and Jeffrey to the same house is not enough to sustain liability and that Greenway cannot be said to have brought the married couple into contact with each other. And the illustration to the fourth example suggests that the degree of risk required to impose liability must be closer to “certainty of harm” than the mere suspicion of danger entertained by Greenway. In the illustration, a railroad knows that its employees are on strike and are tearing up tracks and attempting to wreck trains, but the railroad fails to guard its tracks and runs its trains as normal. The railroad is negligent. But both the railroad‘s knowledge of “peculiar conditions” and the risk to the victims in this example are of a different kind and quality than in the present case because the criminal element was manifest before the railroad‘s decision to run the trains. There is nothing to suggest a sufficient degree of risk to create a duty in this case.
b. Liability in this case would be unprecedented.
The Restatement is authoritative only as a statement of the common law, and no court has ever stretched § 302B to impose a duty in a case like this one. Such a duty cannot be found in our own precedent, and other courts have frequently declined to impose a duty in similar circumstances.19
Hurn cites Pamela L. v. Farmer,20 a case from the California Court of Appeal, as support. In Pamela L., a wife invited children to swim in her pool, promised their parents they would be safe, and left the children alone in the care of her husband who was a convicted child molester.21 After the children were assaulted, the court held that a jury could find the wife liable under § 302B because she unreasonably increased the risk of the attack.22 But this is not like the present case. The wife in Pamela L. was
A review of other cases where § 302B has been invoked to support liability reveals similar distinctions.23 In some cases the tortfeasors provided the instrument of harm;24 in others they brought the parties together knowing that violence was likely.25 And acceptance of even this narrow application of § 302B is not universal.26 Hurn does not argue that Greenway was negligent for driving Carrie and Jeffrey—at Carrie‘s request—to her house. Nor does he contend
2. If § 302B is not controlling, we decline to impose a duty of our own accord.
If § 302B does not control, we may impose a duty of our own accord.27 We decline to do so here. The process of finding a duty is simply “an attempt to determine whether it would be fair and equitable to require an individual to act, or to refrain from acting, in a specified manner so as to avoid undue risk of harm to third persons.”28 In D.S.W. v. Fairbanks North Star Borough School District, we identified several factors to guide this inquiry.29 Of these, foreseeabil-
a. Jeffrey‘s violence was not foreseeable.
Foreseeability is the most important D.S.W. factor,32 so we must decide whether Jeffrey‘s violent rampage was a foreseeable result of Greenway‘s provocative dance. Hurn argues that foreseeability is a question of fact more fit for jury than judge. But the question of duty is a matter of law.33 And summary judgment is appropriate where the only reasonable inference from the undisputed facts is that the harm was not foreseeable.34
Hurn also argues that Jeffrey‘s precise acts need not have been foreseeable. This is true. We have held that “foreseeability is a broad concept and does not require that the precise harm in a given case be predictable.”35 Instead, the manifested harm “need only be one of the cluster of harms in a generally foreseeable category.”36 But this theoretical category of harms must be sufficiently related to the actual injury that occurred. It is not enough that Greenway
And this does not answer the more fundamental question of what it means for a harm or category of harms to be “foreseeable” at all. In the past we have acknowledged that the foreseeability inquiry has as much to do with public policy as the ability to predict the future: “foreseeability is a question of the fundamental policy of the law, as to whether the defendant‘s responsibility should extend to such results.”37 We have also adopted a more practical test: “[t]he actor‘s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor‘s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.”38 As we have noted above, the Restatement tells us that third-party crimes are rarely foreseeable.39
We conclude that Jeffrey‘s shooting spree was a highly extraordinary response to Greenway‘s dance. Hurn argues that foreseeability can be inferred because Greenway knew that Jeffrey had threatened Carrie with physical harm in the past; Carrie was afraid that Jeffrey would kill her; Jeffrey was a jealous man; on the night of the
We read these facts in the light most favorable to the plaintiff, but as a matter of law they cannot overcome the presumption that the criminal acts of third parties are unforeseeable. It is not clear that homicide could ever be the foreseeable result of mere teasing, and Greenway could not foresee such violence here.
b. The burden of the duty on Greenway and the consequences to the community are too harsh.
The burden the proposed duty would place on Greenway and society also weighs against its imposition. Hurn asks us to reduce domestic violence in this state by imposing a duty to “refrain from teasing or bullying someone known to be potentially violent.” But we refuse to give victims the duty to prevent their own abuse and then hold them liable when they fail. The record suggests that Jeffrey was an abusive husband.40 And if Greenway is liable for taunting an abusive husband, it follows that victims themselves may be liable for provoking their partners if the result is harm to a third party. Some courts have already been asked to hold a recipient of domestic abuse liable under § 302B for the crimes of her partner. The Iowa Supreme Court held that a woman was not liable for the actions of her jealous and abusive boyfriend after he assaulted another man she brought home.41 These requests are particularly troubling where, as here, the
V. CONCLUSION
Simone Greenway had no duty to protect Carrie Randall-Evans or control Jeffrey Evans because she did not share a special relationship with either of them. Nor did Greenway have a duty to refrain from provoking Jeffrey by dancing with his wife. We therefore AFFIRM the superior court‘s grant of summary judgment in favor of Simone Greenway.
Angelo JOSEPH, Appellant,
v.
STATE of Alaska, Appellee.
No. A-10795.
Court of Appeals of Alaska.
Dec. 14, 2012.
Rehearing Denied Dec. 31, 2012.