*1 principles City and the by these Guided mem- explicit ban on a conflicted
Homer’s respectfully, I participation, dissent
ber’s remedy. Rather than re-
from the court’s issue, I 92- would hold Ordinance
mand this of council member Swed-
18 invalid because participation.6
en’s
Jerry MADDOX, Appellant, MARINE, INC., Appellee.
RIVER & SEA
No. S-6582.
Supreme of Alaska. Court
Nov. particular posi- unnecessary persuading numerically toward tainted vote was intent any particular evenly split actual Courts tion. The contribution the decision. issue, have on preci- favoring measured with slight majority cannot be invalida- decisionmaker sion, significantly frequently be- refusing extends deci- tion. Courts to invalidate such reason, a yond cast. For this primarily the actual vote sions that even with- reasoned accuracy significant exist even threat to can out vote decision the tainted would numerically particular unnec- anyway and when a vote therefore invalidation occurred accuracy essary for the decision. improper. In this sense the threat legitimacy also arguably similar reasons concerns legitimacy de minim- For concerns is numerically unneces- particular apparently even when a vote is exist is when the vote is sary. Although legitimacy are less concerns particular, legitimacy to a decision. In crucial circumstances, percep- such less threatened when decision substantial concerns are result, сollegial decisionmaking poten- appears the adminis- tion inevitable. As invalidating remanding of a tainted decisionmaker tial influence trative burden of "appearance fairness" outweighs would others violate threat substantive decision Thus, legiti- accuracy for both perceptions standards. results and of fairness. distinctions, macy view is that even when strong reasons the better Despite these several numerically unnecessary deci- for a invalidating vote is decisions even reasons exist courts should still invalidate it. vote was nu- sion when a tainted decisionmaker's omitted). First, (footnotes unnecessary merically Id. at 214-216 for the decision. invalidating decisions have noted courts agreement other decisionmaking ideally my with the court's collegial note involves I views, holdings. exchange of ideas and often with *2 Flanigan, Flanigan, Michael W. Walther & Anchorage, Appellant. Corey, Smith, Sandberg,
Michael D. Wues- Corey, Anchorage, Appedee. tenfeld & COMPTON, C.J., RABINOWITZ, Before EASTAUGH, JJ., and MATTHEWS CARPENETI, J. Pro Tem* OPINION CARPENETI, Justice Pro Tern.
I. INTRODUCTION appeal superior This is an from a granting summary judgment decision to de- Marine, (River fendant River and Sea Inc. Sea), dismissing (Maddox). claim plaintiff Jerry Maddox scope case involves the aof seller’s of, purchaser safe, to warn the or make chattel dangerous for its intended use. The dispute injured whеn arose Maddox his back while attempting detach truck a purchased boat and trailer from River and Sea. Because we find that material issues of fact are in dispute concerning the defendant’s duty, grant we reverse the court’s summary judgment and remand for farther proceedings.
II. AND FACTS PROCEEDINGS purchased power Maddox a used boat and August from River and Sea on 1990, in Kenai. River and is a retail boats, motors, trailers, seller of snowma- chines, and all-terrain vehicles. Maddox had owned power three boats and trailers before purchasing Sea, boat from River and had worked a boat salesman. The boat years tráiler been two had leased for trailer, another customer. The boat made companies, paired by different were purchased River and When Sea. Maddox boat, possession still in prior lessee. been left at empty and Sea. Maddox attached the Sea, trailer to his truck River and then * IV, Sitting by assignment pursuant made to article section 16 of Alaska Constitution. light rendering liable tion the boat from location
retrieved him of it.4 its failure to warn river.1 summary judg- moved for River and Sea later, to de- days Maddox decided Several ment, duty to arguing provide that it had no from his truck. and trailer tach the boat with a boat-trailer combination' that so, attempted to do he found When he *3 hand, if by such a raised with the trailer was tongue-jack supplied the breached, and if the was owed it was the attempted to remove He then broken.2 duty was both owed and breached Maddox’s by pro- In the his from truck trailer not caused the breach. Af- were back, to the injured allegedly due cess argument, briefing ter the court boat-trailer combina- of the excessive summary for granted River and Sea’s motion tion. judgment, stating: “while the is not deposition that hе at his Maddox testified saying any duty the defendant free trailer attempted first to lift the boat at the respect plaintiff, plaintiff the to the off, got so I hitch wouldn’t come “[i]t the has described the for which defen- reverse, truck, put back in the the truck liable, held the court find dant should be can gas sharply” in to break hit the order [and] appeals. none.” Maddox the clamp. He returned to the trailer loose boat attempted then lift the trailer and III. DISCUSSION bow, feet the five to six with his back under summary judgment, of we must review tongue. of trailer’s Mad- from the end the any genuine whether there are determine Kint- of Robert dox the affidavit submitted fact, of mov issues material whether the (Kintzele), investigator hired zele judgment ing party entitled to as a the who stated that he examined Maddox matter of law. “The court must draw all tongue- and that the boat-trailer combination of non- reasonable inferences in favor the configured at the weight as combination moving against the party and movant.” pounds.3 the of the was 394 time Trucking Excavating, & Inc. v. Swenson Co., Equip. Truckweld injury, After the Maddox took (Alaska 1980). requested River back to so, they They tongue-weight. the did reduce rule, general negligence As issues of аpparently by relocating the of the trail- axle presented by this ease as those affidavit, According to Kintzele after er. summary susceptible judgment due to the adjustment tongue-weight was 285 this required in judgments highly circumstantial determination, be resolved their but should ordinary manner. by trial in the Webb Sea, against filed suit Maddox Sitka, Borough City & claiming that his of of result (Alaska 1977). case, we in that noted As him an im- selling Sea’s for rule is reason matched and a bro- properly boat the elusive nature the con- tongue-jack. alleged ken because of Maddox negligence, incorrectly paired, cеpt re- the determination trailer were boat and requires of which the form- tongue-weight. in an the existence sulting excessive contended, Therefore, ing judgment as to the reasonableness Maddox light in the parties the broken conduct boat-trailer combination and ease. If rea- condi- all the circumstances of the tongue-jack constituted a water, "tongue-weight” to the amount 3. The term refers 1. Because the boat was in required required to lift the boat to raise trailer at the end of was not of force this time. tongue. “tongue” portion the trailer is that Sea is Maddоx does not claim that River and towing forward to attach to vehicle. extends liability, product or breach liable strict tongue-jack is a A device that raises warranty. express implied or or order to attach detach trailer. product. According minds could draw infer- sonable different seller’s to the Restate- ences and reach different conclusions from ment Torts must for the facts issue be reserved supplies directly through who [o]ne trial. person third a chattel for another to use is subject sup- to those whom Id., (quoting Ry. Gross v. Southern plier expect should to use the chattel with (5th Cir.1969) (citations 292, 297 F.2d omit- consent of the other or to endan- ted)).5 use, gered by physical probable for harm caused the use of chattel in Duty A. Scope Seller’s to Warn Pur- person of, the manner for which and Safe, chaser or Make Products supplied, supplier whose use it is if the Dangerous Their Intended Use (a) has knows or reason to know that *4 The court concluded that River likely dangerous the chattel is or is to be duty and a Sea did owe Maddox supplied, for the use for which it is regard configuration to the of the boat-trailer (b) has no to that reason believe those Specifically, combination. the trial court supplied whose for use the chattel is will duty found that River and did not have a condition, dangerous realize its configure to the boat-trailer combination in (c) fails to exercise to reasonable care way that it such a could be detached manual- dangerous them inform of its condition or court, ly. respect With due to the trial we likely of facts which make it to be being see as the issue different: It is wheth- dangerous. duty er River and Sea Maddox a owed to (Second) (1965).6 § Restatement Torts 388 configure prop- the boat-trailer cоmbination of explicitly we adopted While have not Section erly or to warn him that not so 388, to we referred it. Saddler v. Alas- configured. Inc., Lines, 784, ka Marine 856 788 P.2d “duty” concept negligence of (Alaska 1993). recognized Prior cases have a range a encompasses policy broad consid warn, duty breach of which result when, underlying erations the determination Prince, liability. 87; strict 685 P.2d at Pa- extent, and to what an individual should bear Sullivan, (Alas- 91, R. v. 631 tricia P.2d 102 given activity. Bushy the costs of See 1981). ka 230, Municipality Anchorage, 741 P.2d suggests duty River and Sea that it had no (Alaska 1987) (listing 233 factors relevant to otherwise, under Section 388 or analysis). long Courts recognized protect him of the boat- responsibility seller must shoulder some for (1). trailer combination because: it was not imposed by dangerous costs defective or attempt foreseeable he would to detach Parachutes, Inc., products. Prince v. 685 (2) hand; by danger posed (Alaska 83, 1984); 87 see also MacPher by was obvious. Co., 382, son v. Buick Motor N.Y. (1916) (duty N.E. of manufactur Foreseeability Detaching B. Trailer er). Hand Restatement, outcome this case turns Under the and under scope duty protect general negligence seller’s the custom- princiрles, ambit of potentially posed er from hazards beyond one’s does not extend foresee- argues opening § River and Sea that issues are 6. Maddox cites Restatement 392 in his negligence,” "issues therefore that the brief. Section 392 "states the rule under which preference apply peculiar liability imposed upon supply- for trial determination does not one previously applied gen- ing here. This has chattels for another’s use because fact against summary judgment eral rule supplier in cases that the use is one in which the has a See, determining (Second) e.g., whether a exists. business interest.” Restatement Torts Lines, Inc., § Saddler v. Alaska Marine 392 cmt. As the chattel in this case (Alaska 1993). supplied The same circumstan- was not use in which River and interest, judgments required tial in such as in general cases Sea had a business rule applies. other cases. stated in Section 388 Long during Palsgraf v. such use of consequences. Island able product. N.Y. 162 N.E. R.R. (“If (1928) [one harm not willful who However, the record also contained evi- show that the act law]
seeks redress at
must
suggesting
dence
that it was
foreseeable
danger many
possibilities of
so
as to him had
the boat-trailer сombination would be lifted
protect-
him be
apparent as to entitle
offered
it.”).
(e)
doing of
against the
Comment
ed
(Paulk),
Robert Paulk
a former River and
states:
Section 388
employee who
stated
“it is well
frequently
another
lends
chattel to
to be
known that boat users are
in a
[0]ne who
which,
they
though
position
tongue by
lift the
put
particular
to a
use for
have to
failure,
safe,
defective,
tongue jack
required
give hand due to
which is
it is
is not
defect, although
tongue weights
warning of the
knows
common with excessive
during
that it
Thomson admitted
his de-
of its existence
knows
makes
these.”
uses,
prеvious
position
other
un-
that both he and the
owner
the chattel
expect
less
reason to
such other
the boat
lifted this boat-trailer combi-
he has
that a
nation
hand. He further testified
uses.
permissible
tongue-weight
maximum
§
Torts
388 cmt. e
Restatement
“[bjetween
pounds,”
hundred and
added).
(1965) (emphasis
Page
See also W.
that any more was “more awkward than is
*5
al., Prosser
Keeton
Keeton et
on
addition,
necessary.”
tongue-jack
96,
(5th
1984);
§
ed.
Law
Torts
at 687
of
provided with the trailer was defective.
Neakok, 721
Division
v.
Corrections
of
this,
and Sea was not aware of
While River
(Alaska 1986) (“The
1121,
impor-
mоst
been,
jury may
find that it should have
well
imposing
single
tant
criterion for
of
possession
trailer was in its
when
foreseeability.”).
is
re-
care
This doctrine
purchased
it.
it
understanding
that
is both
flects
basic
inequitable
person
Drawing
and inefficient to hold
all reasonable inferences in favor
of which
or she is unaware.
of
this evidence creates a material
risks
dispute
foreseeability
of
over
Maddox’s
summary judgment
Propriety
1.
on
of
attempt
to lift the
boat-trailer
foreseeability
by
summary
hold that
hand. Therefore we
conclude that Maddox satisfied
We
judgment
granted
not
could
be
this basis.
by prеsenting
evidence sufficient
burden
by
Danger Posed
Ex-
C. Obviousness
genuine dispute regarding the
to create a
of
Weight
cessive
by
foreseeability
detaching
of
summary judgment
hand. Therefore
should
danger
that
argues
and Sea also
River
granted
not
on this basis.
have been
weight
posed by the
of the boat-trailer com-
danger,
it
an obvious
for which
bination was
supported
River
with
motion
responsible.
not be held
should
(Thomson),
Peter Thomson
president
majority
shareholder and
to warn
obvious
Absence of
River and Sea. Thomson testified that
dangers
safety
primary
balancing
concern in
boat-
аppear universally
agree
with
creating enough
Courts
combinations
is
firmly
is not liable for
weight
the Restatement that
seller
at the
attach
obviously dangerous
towing
an
He further
caused
to the
vehicle.
See,
Turner,
e.g.,
v.
product.
Mele
given
stated
the wide variations in the
that
(no
787,
(1986)
73,
boats,
design
weight Wash.2d
720 P.2d
boat-trailer com-
liability arising from failure to warn of obvi-
often
binations similar
size Maddox’s
Indus.,
danger);
ous
Nichols v.
could
lifted
hand. Based on this
not be
Westfield
1985)
(Iowa
Ltd.,
(sup-
evidence,
N.W.2d
argued
before the
dangers
which are
plier’s duty is warn of
suppliers
could not rea-
to use of the chattel
sоnably
manually
respect
expect individuals to
de-
obvious
supplied).
it is
As
condition which
tach
and therefore could
be held
trailers
388(b)
necessary
suggests,
lar
at
ease.
“[i]t
Section
is not
issue
Given the
range
strengths,
supplier
to inform
for whose wide
individual sizes
those
person
weighty
is the
supplied
is
best
use the chattel
of a condition
judge
ability
safely.7
of his or her
to lift it
looking
which a mere casual
over will dis-
only
injury particularly
is the
Not
risk of
close,
which
unless the circumstances under
person lifting
object,
to the
“obvious”
it is
supplied
the chattel
are such
make it
is
as to
extremely
pеrceive.
difficult for the seller to
likely
so
inspection
that even
casual an
will
seller, however,
This fact does not
relieve
not be made.” Restatement
prior duty
purchaser
to inform the
§
k
Torts
388 cmt.
combination;
of the boat-trailer
(now Justice)
Judge
applying
Breyer in
only
purchaser
if
relieved
liability
impose
Maine law refused to
reasonably
expected
to become
obviously
an
con-
placing
aware of the
before
himself or
required suppliers
dition.
the law
“[I]f
in danger.
herself
dangers
warn of all
in a
obvious
inherent
product,
practices
of foоlish
warned
‘[t]he list
Propriety
summary judgment
based
against
long,
so
fill a
would be
it would
on obviousness of
”
Corp.,
volume.’ Plante Hobart
F.2d
Summary judgment
appropriate,
(1st Cir.1985) (citation omitted).
617, 620
We
therefore,
dispute
if there was no
impose
strict
based
refused to
reasonably
River and
dangers
failure to warn
“hazards or
expected
Maddox to
aware of the
readily recognized
would be
the ordi-
tongue-weight
posed
with
Prince,
nary
product.”
user of the
685 P.2d
warning
out
Sea. See
al.,
Page
at 88.
W.
et
See also
Keeton
States,
Andrulonis v. United
924 F.2d
Prosser and Keeton on the Law
Torts
(2d Cir.1991), vacated,
801, 112
502 U.S.
1984).
(5th
§
ed.
686-87
(1991),
S.Ct.
L.Ed.2d 18
result rein
*6
These cases and the Restatement
(2d
stated,
Cir.1991),
The decision risk of tongue- did not feel the full force products fully-informed gains weight user until he removed the from the support partieu- point further in thе context of the hitch. At that no he had choice wheth- this, holding employer appears In his when it that information concern- by bellboy attempt- back suffered while ing assigned by employer a task an to an suitcase, ing heavy Washington to lift a Su- employee, information, opportunity acquire or the preme Court observed: equally by persons is shared Any person intelligence concerned, can estimate his general ... rule is that strength.... physical emergency own [N]o employer is not liable for an suffered alleged. By [is] a reasonable exercise of his employеe. faculties, [plaintiff] could have his estimated v. Cotton Morck Hotel Wash.2d strength ability own to move the box in 711, 718(1949). any particular manner.... a case as [such] injuries were not ate because Maddox’s already he bore tongue, as to lift the er tongue. no We presented weight of the weight. River full grant would have that Maddox decision to suggesting court’s evidence affirm tongue- of the magnitude grounds. summary judgment been aware on alternative tongue from (Alaska he removed State, before Wright v. during his de- Thomson testified hitch.8 1992) (“This by the rea- court is not bound vary substan- tongue-weights position in the trial court and can soning articulated length, boats of similar tially between even summary judgment on al- grant affirm predict how quite difficult that it is con- River and Sea grounds.”). ternative will be. combination heavy a boat-trailer placed himself tends that because prop- suggested that the affidavit Paulk tongue, end of the to six feet from the five boat-trailer combina- tongue-weight of the er greater than if he subjected himself to force 80 and would be between to Maddox tion sold According- at the end. had lifted the trailer in favor Drawing inferences all improper argues that his ly, River and Sea differ minds could rеasonable tongue- rather than the excessive positioning, Mad- as to whether upon this evidence based injury. We decline weight, caused Maddox’s inju- appreciated the risk dox should ground. on this to affirm tongue. ry before person to a generally obvious Weight is Enters., Inc., Farley Morris directly ground, lifting an (Alaska 1983), two-part enunciates P.2d 167 object. actually Howev- one lifts before eases. causation test er, the boat-trailer tongue-weight of First, that the accident plaintiff must show by the largely determined the defen happened “but for” not have would trailer. of the boat placement of the axle Second, negligent act negligence. dant’s object was weight of this Accordingly, the bringing important so must have been Moreover, in advance. not obvious person injury that a reasonable about the by the partially borne tongue-weight was respon attach regard it as a cause and would it. Maddox removed hitch as the standard sibility it. Id. at 169. Given dispute the in material leaves The evidence summary judg involving in cases of review reasonably Maddox could question whether ment, summary judgment conclude we associated the hazards expected to realize pre granted on the could not be these circum- lifting the trailer. Under sented. stances, summary judgment should have *7 concerning tongue- only injury The evidence danger of inherent been denied. in the Kintzele manually not contained weight was was that detaching affidavit, trailer was that as the sufficiently to relieve River which states obvious weight injury any duty configured to warn Maddox at the time Maddox’s tongue was 394 combination.9 end of the at the heavy enough presumably10 It was D. Causation Maddox, even if he injury to cause some point. A himself at the safest positioned had argues, in the alterna River reasоnably that but for conclude jury could tive, judgment appropri- was summary injury, *8 388,1 which to affirm the trial court.12 ment section that is not the case here. (5th alleges 1984) § 11. (noting similarity that and Sea violated its at 274 ed. duty by providing proximate duty analysis). to him a trailer with a defec- cause and jack. negligent tive We infer that the conduct to which he refers is River Sea's and failure to Thus, objects might theoretically some mislead faulty jack. detect the assuming they weighty, users into are might exposed all. A reasonable user to be dan- opinion ger by lifting 12. The issues discussed in this are also the in a manner ill-suited to likely inspect theory. hefting heavy weight. to to arise under a failure One who sells a leaden therefore, determining jack proxi- pillow might, subject whether the broken to for mately injury, failing purchaser weight caused Maddox's the trial court to warn a attempt dangerously greater will have to determine appears whether to than to be. it Per- manually haps object’s weight might pose detach the trailer was foreseeable in an also non- light PageW. of the circumstances. See Keeton obvious if a hazard consumer could set it into al., lifting et and Prosser Keeton on the Law Tоrts downward motion without first its full motors, inevitably ators. tongue weight apply disclosed It should to outboard might of the consumers in- any person sought who to because to and obvious jure lifting themselves the motors from person unhitching A unhitch the trailer. ground removing level or them boat hitch, from to lift the and thus the trailer had transoms. towing inches clear the tongue, several the hitch Maddox tes-
ball which rested. Likewise, any tongue duty to disclose the seven-eighths it was an and tified that inch weight eighteen-foot of an boat and trailer To unhitch the or a two-inch standard ball. combination would to all apply boаt-trailer trailer, tongue he had to raise the some apply It combinations. would to smaller vertically top of inches to clear the the ball boat-trailer because own- combinations some consequently attached to his truck. The user foreseeably ers able than are less Maddox. weight full tongue could before the apply larger assess It would much boat-trailer ball; top combinations, hitch before the cleared some users inevi- because will ball, always tably appreciate weight hitch the user could fail to that the ex- cleared ability weight, drop safely hitch ceeds allowing release the their to lift and because tongue weights inevitably will safely weight exceed the ca- the ball. The full thus over pabilities consumer. It is irrelevant during poten- lift. The became obvious that Maddox’s and boat trailer (any discrepancy tial between the tongue weight been mismatched that the and ability user’s and the undisclosed tongue weight “excessive.” inevitably tongue weight) was disclosed to adjusted properly matched boat the user. lifting capa- trailer could still the safe exceed discerning tongue This method bilities of some consumers. weight is more valuable to a consumer than a purchaser reasonably No could have ex- perhaps Except written disclosure. pected appearance the boat lifters, weight skilled written disclosure of a tongue weight would be trivi- weight help non-trivial few consumers would consumers, safely al all and could be lifted they safely lift decide whether could an ob- regardless age, strength, infirmity, of their ject. what Most would to do reasonable experience, intelligence. Maddox submit- expected persons to do: must assess weight ted should have weight against their own abilities while tak- been between and 200 Some ing up tongue weight raising incapable safely lifting consumers hitch. The ineffectiveness of disclosure con- weights, not mean the failure to does infirmity imposing firms the here. disclose them creates a under section Apart resulting from fluctuations from what carrying the boat con- Knowledge gravity imputed must be located to the trailer’s tents were relative duty given I no all find consumers. would axle, disclosing tongue weight would reveal lift of facts of this casé: vertical salient they safely few consumers whether weight opportunities to a non-trivial unhitch the trailer сompare weight ability to with the user’s Nothing about the boat and combi- safely if it lift release moderately apart nation from other sets I would affirm the sum- seemed excessive. heavy products If provided to consumers. mary judgment. justification imposing there were case, in this it would disclose products, logically to other consumer extend televisions, stoves,
including
reftiger-
*9
car,
wagon
weight.
Elec.
to unload an
from a
or a
Forsman
Seattle
58 Wash.
appearance
no notice other than the
has
object,
P.
until the
him and the
party
heavy
to raise a
Where
undertakes
brief,
danger period at
in the one
body
ground,
he has notice of the
he can
when the
becomes
case
apparent,
desist
danger period
before the
arrives.
It is
the other
cannot.
different, however,
very
Id.
one undertakes