Gordon v. Alaska Pacific Bancorporation
| Decision Date | 07 April 1988 |
| Docket Number | No. S-1905,S-1905 |
| Citation | 753 P.2d 721 |
| Parties | Michael W. GORDON, Appellant, v. ALASKA PACIFIC BANCORPORATION and Alaska Pacific Mortgage Company, Appellees. |
| Court | Alaska Supreme Court |
Blaine D. Gilman, Boyko, Davis & Dennis, Anchorage, for appellant.
Barry J. Kell and John C. Dittman, Richmond & Quinn, Anchorage, for appellees.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
Alaska Pacific Mortgage Company sponsored a party for its customers. Some four hundred invited guests rode a train from Anchorage to Snyder Park in Wasilla for a dance. Alaska Pacific provided free champagne, wine and beer on the train and at the park.
Michael Gordon 1 was a party guest. Following the dance, as he was walking back to the train, he observed a fight between James Geleszinski and Jim Irvine. 2 Gordon intervened, pulled Geleszinski off Irvine, and held him.
Randy Boyd, an executive vice president of Alaska Pacific, arrived and asked Gordon to release Geleszinski. Gordon complied. Boyd walked Geleszinski ten to fifteen feet away from Gordon, then released him. According to Boyd, Geleszinski appeared calm at the time.
In the meantime, Geleszinski's friend Robin Varner began screaming and threatening Gordon. Gordon testified that everyone was getting excited and it seemed like "a small little riot was about to occur." Fearing an imminent attack, Gordon punched Varner in the face, and broke his own hand. Boyd approached the combatants (having already released Geleszinski), and walked Varner a short distance from the area. Then Geleszinski approached Gordon from the side or rear and punched him in the nose, breaking it and knocking him unconscious. 3
Gordon sued Alaska Pacific for damages, claiming that his injuries resulted from Alaska Pacific's negligent performance of its duty to provide security for his safety and Boyd's negligent undertaking to protect him. 4 The superior court entered summary judgment for Alaska Pacific. Gordon appeals.
Gordon's first argument is that Alaska Pacific had a duty to use reasonable care to provide adequate security at Snyder Park to protect its guests. The Restatement (Second) of Torts § 344 (1965) states:
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
The duty of reasonable care includes a duty to provide security forces on premises when necessary to protect the public from foreseeable harm.
Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.
Id. comment f (emphasis added). See Ollison v. Weinberg Racing Ass'n, 688 P.2d 847, 849-52 (Or.App.1984); see also Carlson v. State, 598 P.2d 969 (Alaska 1979) (); Webb v. City and Borough of Sitka, 561 P.2d 731 (Alaska 1977).
Alaska Pacific does not argue that it was not a possessor of Snyder Park when it hosted the party there. In our view a jury question is presented as to whether Alaska Pacific should have reasonably anticipated altercations among its guests. If the answer to that question is in the affirmative, the jury could find that Alaska Pacific failed to take reasonable precautions which would have prevented harm to Gordon.
The jury could find a duty to anticipate outbreaks of violence on the following facts. There was a large crowd of people to whom large quantities of free liquor were given. No effort was made to limit dispensation of alcohol to those apparently sober. One of the activities was a dance, where jealousies, proposals for sexual transactions, and social slights might play a motivational role.
Alaska Pacific argues that AS 04.21.020 relieves it of liability to Gordon. 5 That section exempts from civil liability a person who does not hold a liquor license who furnishes liquor to an intoxicated person who, as a result of his intoxication, injures a third party. This is in general accordance with the majority rule at common law. Fruit v. Schreiner, 502 P.2d 133, 142-43 (Alaska 1972) (). We conclude that the rule of exemption has no application to this case. Gordon's claim is not that Alaska Pacific is liable because it served people who were intoxicated. His claim is that Alaska Pacific had a duty to provide protection, knowing, among other things, that intoxicated people would be on the premises. The source of the intoxicants is not critical to this theory. See D'Amico v. Christie, 518 N.E.2d 896, 899-900 (N.Y.1987).
Gordon also argues that Boyd had a duty of reasonable care because Boyd undertook to protect him from Geleszinski. If Boyd breached this duty, Alaska Pacific is liable for Gordon's injuries under the doctrine of respondeat superior. Alaska Pacific contends that Boyd did not undertake to protect Gordon. The trial court apparently ruled that Boyd did undertake to break up the fight, but concluded that he exercised reasonable care as a matter of law.
Even though one person is otherwise under no duty to another, if he voluntarily undertakes to protect the other he may be liable for his negligence in doing so.
The Restatement (Second) of Torts § 323 (1965) imposes liability on a defendant that negligently performs an undertaking to render services:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
We have relied on this principle to establish a duty of care in a variety of factual situations. For example, a city which undertakes to provide police protection to its residents has a duty to exercise reasonable care in providing those services. City of Kotzebue v. McLean, 702 P.2d 1309, 1312-13 (Alaska 1985). Similarly, a defendant that voluntarily supplies a ladder for access between a tugboat and a dock is under a duty to exercise some degree of care toward those using the ladder. Williams v. Municipality of Anchorage, 633 P.2d 248, 251 (Alaska 1981). Finally, if the state voluntarily conducts building fire safety inspections, it must exercise reasonable care in conducting the inspection and abating known fire hazards. Adams v. State, 555 P.2d 235, 240-41 (Alaska 1976). However, evidence that the undertaking is for the plaintiff's benefit is a prerequisite to liability; a plaintiff who does not produce such evidence is not entitled to a jury instruction on this theory. McLinn v. Kodiak Electric Ass'n, 546 P.2d 1305, 1309 n. 8 (Alaska 1976).
Alaskan Village, Inc. v. Smalley, 720 P.2d 945, 947 (Alaska 1986). In Smalley we concluded that a landlord who undertook a duty to control dogs on rented premises is liable to one injured by his negligent failure to do so. Id. at 948.
Gordon testified that, after he pulled Geleszinski off Irvine, he would not let Geleszinski go until someone came along, because Geleszinski was "mean." When Boyd arrived and asked Gordon to release Geleszinski, Gordon replied, "fine, but if I let him go and he hits me, we're going to have a ... problem." Gordon wanted to make sure that Geleszinski would not turn on him when Gordon let go. Gordon assumed that Boyd or other peop...
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... ... See, e.g., Gordon v. Alaska Pacific Bancorporation, 753 P.2d 721, 724 (Alaska 1988) ... ...