Morrison v. United States of America et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
STEVEN D. MORRISON, )
)
Plaintiff, ) 4:15-CV-00014 JWS
)
vs. ) ORDER AND OPINION
)
) [Re: Motion at docket 47]
UNITED STATES OF AMERICA )
and CHENEGA INTEGRATED )
SYSTEMS, LLC, )
)
)
Defendants. )
)
I. MOTION PRESENTED
At docket 47, Defendant Chenega Integrated Systems, LLC (CIS) filed a motion
for summary judgment. Plaintiff Steven Morrison (Plaintiff) filed an opposition at
docket 51. CIS replied at docket 53. Oral argument was not requested and would not
assist the court.
II. BACKGROUND
In January of 2012, Plaintiff was working for Pacific Alaska Freightways, Inc., as
a commercial delivery driver and was assigned to make a delivery to Iceman Outfitters,
a store within the confines of Eielson Air Force Base (the “Base”). Security services for
the Base, including inspection of commercial delivery vehicles, were provided by CIS
Case 4:15-cv-00014-SLG Document 57 Filed 06/20/17 Page 1 of 10

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pursuant to CIS’s subcontract with TW & Company, Inc. (the “Subcontract”). TW in turn
had a Security Forces Support Services Contract with the United States Air Force for
security services at the Base.
After arriving at the Base for the delivery, Plaintiff exited his truck at the
designated inspection area in order for the security guards to perform their mandatory
inspection and paperwork. He waited in the designated area during the guards’
inspection. While returning to his truck after the inspection, he slipped and fell on ice,
injuring his right knee.
It is undisputed that drivers such as Plaintiff are required to exit their trucks for
inspection before being allowed to enter the Base. It is undisputed that Plaintiff was
parked where the CIS security guards had instructed him to park and was walking
where he was expected and instructed to walk. It is undisputed that the area where he
was walking was icy.
Plaintiff subsequently brought this lawsuit in federal court, alleging negligence
and negligence per se against the United States and CIS. As to the negligence claim,
Plaintiff alleges that the United States and/or CIS “negligently designed, constructed
and/or maintained the Eielson front gate walk areas.”1 As to the negligence per se
claim, Plaintiff alleges that the United States and/or CIS “violated rules, regulations,
codes and/or statutes designed to protect persons such as [Plaintiff] from the type of
harm he suffered . . . .”2 CIS now asks the court to grant it summary judgment, arguing
that it does not owe Plaintiff any duty to provide safe, ice-free walkways. It argues that
it did not design or construct the front gate and inspection area on Base and that the
United States is responsible for snow and ice removal on walkways, entryways, and
roadways throughout the base, including the front gate and inspection area. Plaintiff
opposes the motion, arguing that CIS owes Plaintiff a duty to maintain the walkways
1Doc. 17 at p. 5 (Complaint ¶ 28).
2Doc. 17 at p. 5 (Complaint ¶ 29).
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and ground surfaces in the inspection area in a reasonably safe condition and to warn
him of any dangerous walkway or surface conditions based on its status as a tenant
and/or “occupier of land,” as well as under the Subcontract.3
III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”4 The
materiality requirement ensures that “only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.”5 Ultimately, “summary judgment will not lie if the . . . evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”6 However, summary
judgment is mandated “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.”7
The moving party has the burden of showing that there is no genuine dispute as
to any material fact.8 Where the nonmoving party will bear the burden of proof at trial
on a dispositive issue, the moving party need not present evidence to show that
summary judgment is warranted; it need only point out the lack of any genuine dispute
as to material fact.9 Once the moving party has met this burden, the nonmoving party
3Plaintiff does not dispute CIS’s argument that CIS did not have any part in the design or
construction of the front gate and inspection area, and therefore the negligence claim against
CIS is limited to the maintenance issue.
4Fed. R. Civ. P. 56(a).
5Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
6Id.
7Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
8Id. at 323.
9Id. at 323-25.
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must set forth evidence of specific facts showing the existence of a genuine issue for
trial.10 All evidence presented by the non-movant must be believed for purposes of
summary judgment, and all justifiable inferences must be drawn in favor of the
non-movant.11 However, the non-moving party may not rest upon mere allegations or
denials, but must show that there is sufficient evidence supporting the claimed factual
dispute to require a fact-finder to resolve the parties’ differing versions of the truth at
trial.12
IV. DISCUSSION
Negligence
Under Alaska law, the existence of a defendant’s duty in a negligence case is a
question of law which can be decided at the summary judgment stage. Summary
judgment is appropriate when “no evidence tends to suggest that any duty has arisen
between a defendant and plaintiff.”13 To determine whether a defendant owes a plaintiff
a duty of reasonable care, the court first considers “whether a duty is imposed by
statute, regulation, contract, undertaking, the parties' preexisting relationship, or existing
case law.”14 If these sources do not resolve the issue, the court applies a set of public
policy factors to determine whether an actionable duty exists.15 The related, and
sometimes intertwined, question regarding the scope of that duty is also an issue that
can be properly decided at the summary judgment phase if the duty owed is “clearly
and vastly narrower in scope than the one that the other party asserts in opposing
10Anderson, 477 U.S. at 248-49.
11Id. at 255.
12Id. at 248-49.
13Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199, 1205 (Alaska
1998); see also Hurn v. Greenway, 293 P.3d 480, 483 (Alaska 2013).
14Geotek Alaska, Inc. v. Jacobs Eng'g Grp., Inc., 354 P.3d 368, 376 (Alaska 2015).
15Id.
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summary judgement.”16 However, summary judgment is generally disfavored in
situations where no party disputes the existence of a duty, but the precise scope of that
duty is in question. “[I]t is much harder to show that there are no genuinely disputed
material facts when the existence of a duty is clear and the question is of its precise
scope, or whether given conduct fulfilled it.”17
CIS argues that summary judgment is appropriate here because the only
reasonable inference to be taken from the undisputed facts is that CIS did not owe
Plaintiff a duty of care with respect to his use of the walkways and surfaces in the
inspection area. CIS argues that the United States was the landowner and had
procedures for maintaining roadways and walkways and assigned those responsibilities
to military personnel, not CIS. For instance, the evidence shows that removal of snow
and ice from walkways and entryways of buildings on Base was assigned to each
building’s Facility Manager. The Facility Manager for the front gate and inspection area
in January of 2012 was S.Sgt. Freeman, an active duty military member in the Security
Forces Squadron. The responsibility for clearing snow and ice from any general
roadway on base was assigned to the Civil Engineering Squadron. The Civil
Engineering Commander in charge of road maintenance was Lt. Col. Michael Sheredy,
another military member. Based on this evidence, CIS argues that it could not have
owed Plaintiff any duty of care with regard to the condition of the walkways in the
inspection area.
Plaintiff argues that, regardless of the Government’s involvement in clearing
snow and ice on the Base, Alaska case law still makes CIS liable here. He argues that
courts have held tenants responsible for maintaining their leased premises in a
reasonably safe condition, and therefore CIS was responsible for maintenance in the
inspection area. Plaintiff does not provide any evidence to show that CIS was a tenant.
16Arctic Tug, 956 P.2d at 1203.
17Id. at 1204.
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There is no lease agreement. Indeed, the fact that there was a Facility Manager
responsible for maintenance of the inspection area shows that CIS did not occupy that
portion of the Base to the exclusion of Government employees.
Plaintiff argues that CIS owes him a duty of care with respect to the condition of
the surfaces in the inspection area because, under the facts here, CIS is an “occupier
of land,” even if it is not legally considered a tenant. Plaintiff relies on an Alaska
Supreme Court case, Moloso v. State.18 The court in Moloso quoted with approval a
California case which stated that an “occupier of land” is liable when he is aware of a
concealed condition that poses an unreasonable risk of harm and fails to warn others
about or repair the condition.19 In Moloso, however, the defendant was a landowner in
possession of the property, and the court was discussing landowner liability. It did not
discuss who constitutes an occupier of land, nor did it consider whether a defendant
who is not a landowner, tenant, or exclusive user of the land but, rather, a subcontractor
performing services for the landowner at certain locations on the property can
nonetheless be considered an occupier. Thus, Moloso does not clearly establish the
existence of a duty here.
Plaintiff does not cite any other case that is sufficiently on point. However,
Alaska courts have adopted Restatement (Second) Torts § 343, which imposes liability
on a “possessor of land” for certain concealed conditions. Section 343 reads as
follows:
A possessor of land is subject to liability for physical harm caused to his
invitees by a condition on the land if, but only if, he (a) knows or by the
exercise of reasonable care would discover the condition, and should
realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail
to protect themselves against it, and (c) fails to exercise reasonable care to
protect them against the danger.20
18644 P.2d 205 (Alaska 1982).
19Id. at 219 (quoting Rowland v. Christian, 443 P.2d 561, 568 (Cal. 1968)).
20Restatement (Second) of Torts § 343 (1965).
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A possessor of land is defined as “a person who is in occupation of the land with intent
to control it.”21 Here, the evidence provided shows that the Government maintained at
least some control over the inspection area. There was a Facility Manager assigned to
it, and that person was “responsible for inspection of facilities and repair or reporting of
discrepancies beyond the capability to repair.”22 Plaintiff does not provide any evidence
regarding CIS’s intent to control the property or its actual extent of control.
Plaintiff argues alternatively that the subcontract delegated the Government’s
duties as a landowner to CIS. The responsibility to remove snow and ice from the
inspection area or to generally maintain that area in a reasonably safe condition was
not explicitly delegated to CIS under the Subcontract. However, the Subcontract
nonetheless requires CIS to use some level of care in performing security services.
There is a provision in the Performance Work Statement, which is attached to the
Subcontract, that required CIS to conduct inspections “in a safe manner while
maintaining control of all personnel and vehicles during inspection.”23 This provision
establishes a general duty of care on CIS in relation to its inspection activities. Another
provision, Article 3 of the Subcontract, which neither party discusses, also references
CIS’s duty to the public. It states that CIS “will perform its services using that degree of
skill and care ordinarily exercised under similar conditions by reputable members of
[CIS’s] profession practicing in the same or similar locality at the time of performance”
and that CIS “shall exercise reasonable care to ensure the safety of the public and
other workers with respect to those activities and portions of the work site over which it
has control.”24 This provision, when read in conjunction with the “safe manner”
21Restatement (Second) of Torts § 328E (1965).
22Doc. 47-6 at p. 1.
23Doc. 47-1 at p. 8.
24Doc. 47-1 at p. 5.
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provision in the Performance Work Statement, establishes at least some duty of care
here.
While the court finds that CIS had a contractual duty of care in relation to
Plaintiff’s safety, summary judgment in favor of CIS may still be appropriate if that duty
is “clearly and vastly narrower in scope” than Plaintiff contends.25 CIS argues that the
scope of any duty of care set forth in the contract does not extend to the removal of ice
or warning about slippery conditions. It points to evidence to show that such a provision
is only “boilerplate language that is used in each and every contract made by the U.S.
Air Force in contracting for armed guard services.”26 The fact that the “safe manner”
language is standard in contracts for security at all U.S. Air Force locations, even those
without snow and ice, does not demonstrate that the duty is somehow too narrow to
encompass the situation here. What constitutes a “safe manner” can certainly vary
depending on the underlying circumstances and location of the services. CIS goes on
to argue that the language merely “refers to CIS’s duty to ensure that CIS conducts the
armed security guard duties in a manner that is conscious to threats to the security of
[the Base].”27 CIS, however, does not provide any evidence to support its argument
that its duty is limited as such, and it does not discuss the duty in relation to Article 3 of
the Subcontract, which requires CIS to use a level of care ordinarily exercised by
security guards in such a situation.
There are issues of fact remaining as to the extent of CIS’s duty in this situation.
Neither party provides specific evidence as to what would be considered standard
practice for security operations conducted outdoors. However, the record contains
evidence to support a finding that the ice may have been unreasonably slippery in the
inspection area because vehicles’ warm engines melt snow that then refreezes on top
25Arctic Tug, 956 P.2d at 1203.
26Doc. 53 at p. 7.
27Id.
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of the polished concrete area, creating a thin sheet of ice.28 Plaintiff also presents
evidence to show that sometimes CIS guards would warn drivers exiting vehicles about
slippery conditions in the inspection area29 and that, as part of CIS’s duty to provide for
the safety of its own workers, CIS would make ice cleats available to security officers
under the inspection tent.30 Based on this evidence, a reasonable juror could conclude
that CIS’s duty to conduct inspections in a safe manner and perform services with the
degree of care ordinarily exercised in the profession extended far enough to at least
require CIS guards to provide some warning or safety mechanism with respect to the
icy condition of the ground to those people exiting vehicles for mandatory inspection.
Therefore, summary judgment is not appropriate.
Negligence per se
Under a negligence per se claim, a “[v]iolation of a statute or regulation can
‘amount[] to negligence as a matter of law . . . when the statute or regulation at issue
defines a standard of conduct that a reasonable person is expected to follow under the
circumstances presented.’”31 Put in other terms, negligence per se exists when there is
a “legislative enactment commanding or prohibiting for the safety of others the doing of
a specific act and there is a violation of such enactment solely by one whose duty it is to
obey it . . . .”32 Here, there is no statute, regulation, code, or rule that specifically
commands CIS to do any specific act or defines a standard of conduct applicable to
CIS. Plaintiff argues that Alaska’s civil jury instructions place a duty on CIS as an
occupier of land. The court finds this position untenable. As noted above, there is
28Doc. 51-3 at p. 1; Doc. 51-4 at p. 3.
29Doc. 51-2 at p. 4.
30Doc. 51-2 at p. 3.
31Jones v. Bowie Indus., Inc., 282 P.3d 316, 332 (Alaska 2012) (quoting Pagenkopf v.
Chatham Elec., Inc., 165 P.3d 634, 647 (Alaska 2007)).
32Bachner v. Rich, 554 P.2d 430, 442 (Alaska 1976).
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nothing in the case law to suggest CIS is in fact an entity controlling the property, and,
moreover, the jury instructions do not command CIS to do a specific act for the safety of
others and therefore do not create a defined standard of care to apply under a
negligence per se theory.33 Plaintiff also argues that the American Standards of Testing
Measures (“ASTM”) provide the necessary standards of care for purposes of
negligence per se. Plaintiff only provides incomplete excerpts of these standards, and
fails to provide any evidence as to what these standards are or how they assign a duty
to CIS.34 Also, nothing in the evidence demonstrates that these standards were
adopted or codified by any governing body so as to impose on CIS a duty to comply
with these specific standards. While ASTM may be relevant with respect to the issue of
what constitutes the applicable standard of care and a breach of that standard, they are
insufficient to support a finding of negligence per se.
V. CONCLUSION
Based on the preceding discussion, CIS’s motion to dismiss at docket 47 is
DENIED with respect to Plaintiff’s negligence claim and GRANTED with respect to
Plaintiff’s negligence per se claim.
DATED this 20th day of June 2017.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
33See Dahle v. Atl. Richfield Co., 725 P.2d 1069 (Alaska 1986) (“In order for a provision
to be the basis of a negligence per se instruction, it must set forth a specific standard of
conduct beyond that defined in a common law duty.”).
34Doc. 51-4 at p. 2.
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