The 20th century dramatist George S. Kaufman told the story, presumably apocryphal, of receiving a bill from his lawyer with the entry “For crossing the street to speak to you and discovering it was not you.”  A recent Alaska Supreme Court case, Estate of Mickelsen v. North-Wend Foods, Inc., indicates that Kaufman may have been an optimist. 

The case involves facts that wouldn’t seem to implicate any issues we discuss on this blog.  Simply put, a motorist made an illegal left turn across traffic mid-block in Anchorage and killed a motorcyclist heading in the opposite direction. The motorcyclist crashed into the car, so presumably he didn’t have enough time to swerve or stop.  The unstated but obvious subtext, of course, is that the motorist did not have the resources to fulfill the damages caused. 


So whom did the estate sue?  The franchisee and owner of the land on which a fast food restaurant sits.   Their alleged mistake:  not taking sufficient steps to warn the motorist not to make an illegal left turn into the exit to their drive-through. 


Understand, the case had been dismissed on a Rule 12(b)(6) motion, which presents a pretty high standard, "failure to state a claim on which relief can be granted."  But it’s hard to see where the claim is here. 



Mickelsen’s complaint alleges that [defendants] created an entry and exit system that had the effect of enticing . . . patrons to enter the premises by making an illegal turn across two lanes of traffic, that . . . customers in fact regularly used the short-cut, that [defendants] w[ere] or should have been aware of such use, and that this dangerous condition led to the fatal accident.

This is notwithstanding that the left turn involved illegally turning across a double yellow line and that there are, not surprisingly, traffic laws that impose on a driver making any kind of left turn the duty to do so only when no oncoming driver might smash into your car. Neither of those traffic laws relate to whether there is a driveway the illegal and negligent driver is turning into or the identity of the business that driver may be trying to patronize. And just to make it clear, “[b]ecause the width of the curb-cut accommodates only one vehicle at a time, drivers must often roll one tire over the raised curb in completing the short-cut maneuver.” So drivers would need to violate two important traffic laws and roll over a raised curb to undertake this “short-cut.” This, in Alaska, is “enticement” that is sufficient to create a cause of action that must be defended at great cost.  (more after the jump)



So how did the Alaska Supreme Court reach this decision? It claimed it was bound by a prior precedent, Webb v. City and Borough of Sitka, 561 P.2d 731 (Alaska 1977).”


Webb established that “[a] landowner or owner of other property must act as a reasonable person in maintaining his property in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden on the respective parties of avoiding the risk.”

Here’s the difference: Webb involved a landowner, in this case the City and Borough of Sitka, which had put out a sidewalk on which the plaintiff had tripped and fallen. There was simply no issue in Webb as to the relation between the plaintiff and the defendant; the defendant was on the plaintiff’s sidewalk when she tripped and broke her hip. The Alaska Supreme Court declared this “controlling precedent” establishing the restaurant’s duty to the motorcyclist who was passing by when the motorist had made its doubly illegal left-hand turn. It is pretty close to impossible to see why.


There was a dissent in Mickelsen and it will not surprise you that it has the better of the argument, by far.


I do not believe that [defendants’] duty extends to [plaintiff], an innocent person with no connection to [defendants] (that is, he was not a customer of [the restaurant] but merely an innocent person driving past the restaurant on a public highway when another person made an illegal turn in front of him, causing the collision and his death). I also think that [defendants] have no duty to prevent a person from making an illegal turn in his wrongful attempt to shortcut into [defendants’] parking lot. To extend a business’s duty to the circumstances of this case will vastly expand the potential liability and attendant costs to businesses all over Alaska. This places an intolerable burden not only on those businesses, but on society at large, because the costs of this greatly expanded liability will surely be passed down to the people in the form of higher costs for goods and services, higher insurance costs, and increased litigation.

The dissenting justice, Justice Craig Stowers, added that the plaintiff was asking the court to

impose liability on anyone who is aware of another’s self-destructive behavior, has any ability to prevent that behavior, and fails to save the injured party from his or her own conduct. Such a holding would transform the law of negligence from a means whereby a person may recover for losses caused by the danger which another’s unreasonable behavior created, to a mechanism permitting persons injured by their own conduct to compel any who failed to prevent that conduct to share in the burden of their negligence.

But that language, Justice Stowers pointed out, came out of another Alaska Supreme Court case, one that the majority had distinguished because the “self-destructive behavior” was that of the plaintiff (who was injured while sledding on a defendant’s street). But the principle it represents, that we do not impose tort liability on people without there being a clear duty to protect other people from foreseeable harm, is far more germane to the case than Webb decision, which did not have to consider those issues at all. 

To return to Mr. Kaufman, imagine that his lawyer had been killed while jaywalking to greet someone who turned out not to be him. In Alaska, his heirs might well have been able to get past as 12(b)(6) motion to sue Mr. Kaufman for his audacity in permitting another person to look like him.