McLinn v. Kodiak Elec. Ass'n, Inc.

• Decision Date: 01 March 1976
• Docket Number: No. 2278,2278
• Citation: 546 P.2d 1305
• Parties: Janas Diane McLINN, by her next friend, Charles L. McLinn, Appellant, v. KODIAK ELECTRIC ASSOCIATION, INC., a corporation, Appellee.
• Court: Alaska Supreme Court

Page 1305

546 P.2d 1305

Janas Diane McLINN, by her next friend, Charles L. McLinn, Appellant, v. KODIAK ELECTRIC ASSOCIATION, INC., a corporation, Appellee.

No. 2278.

Supreme Court of Alaska.

March 1, 1976.

Gary A. Zipkin of Ely, Guess & Rudd, Anchorage, for appellant.

Sanford M. Gibbs of Hagans, Smith & Brown, Anchorage, for appellee.

Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ.

OPINION

RABINOWITZ, Chief Justice.

On February 19, 1970, Kodiak Electric Association sent a crew of five employees to install a new pole at the site of existing utility lines in the vicinity of Mission Boad and Urdahl Circle, in the city of Kodiak. a party to this action and whether he actually was parked on Mission Road, thereby obstructing the northbound traffic lane. While cones were deployed around the truck, no flagmen were posted at either end of the obstruction. A driver approaching this obstruction from the south could not see oncoming southbound traffic due to a curve in the road.

At approximately 3:45 p. m., Janas McLinn, then three years old, approached the work site, entered the street, and began playing with the traffic cones. Three Kodiak Electric employees who were observing the progress of the work underway saw Janas as she entered the street and started to play with the cones. Janas was instructed by Kodiak's employees at least twice to stay away from the cones and out of the street. Janas ignored these instructions and continued playing. Subsequently a young boy of approximately ten years of age (Janas' brother) arrived, grasped a struggling Janas by the collar, and led her up Mission Road and onto Urdahl Circle.

At this point a truck with a boat trailer attached, driven by William Burke, appeared on Mission Road traveling north. Upon seeing the traffic cones, the obstruction, and the children standing in Urdahl Circle, Burke testified that he came to a complete stop ¹ and then proceeded foward ² at less than five miles per hour. ³ Burke further stated that at the time his truck passed the children they were standing still about ten feet from him. However, after the truck had passed, Janas McLinn slipped loose from her brother's grasp and stumbled onto the traveled portion of Mission Road and into the wheel of Burke's boat trailer.

As a result of Janas' injuries, suit was brought against Kodiak Electric on her behalf by her parents, but the trial resulted in a hung jury. A second trial resulted in a jury verdict in favor of defendant Kodiak Electric. After Janas' motions for a new trial were denied, this appeal followed. Before this court appellant Janas McLinn basically asserts two specifications of error. First, Janas argues that the superior court erred in instructing the jury that it was incumbent on her to prove that Kodiak Electric was in control of Mission Road at the time and place of the accident. Second, Janas asserts that it was error for the superior court to have refused to instruct the jury that a violation of 17 AAC 15.130 ⁴ is negligence per se.

From the outset the crux of Janas' case has consisted of attempts to establish the existence of a legal duty of care running from Kodiak Electric to her. To that end, appellant has advanced, during the history of this controversy, several different theories of recovery. At the first trial Janas urged that Kodiak was responsible for her injuries under an attractive nuisance rationable. The theory was essentially one of premises liability. During the course of the second trial, Janas suggested other possible grounds for holding Kodiak liable for her injuries. More particularly, she alleged that the waving on of Burke, by an employee of Kodiak, constituted negligent conduct which proximately caused her injuries, and that the obstruction of Mission Road, in conjunction with failure to post flagmen to guide traffic around the obstruction, constituted the kind of unreasonable conduct that predicated an award of damages. Nonetheless, Janas' premises liability theory continued to resurface during the second trial. Janas argued that under the facts of this case Kodiak Electric owed her the same duty of care which a landowner or occupant owes to a trespasser under conventional notions of attractive unisance. ⁵ It is fairly clear from the record that, despite counsel's vacillations, the trial judge virtually from the outset understood the case to be principally one of premises liability.

In instruction 5 the superior court set forth the issues on which Janas McLinn had the burden of proof, as follows:

In this action, the plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues:

(1) That the defendant was negligent;

(2) That the negligence of the defendant was a proximate cause of injury to the plaintiff;

(3) That the defendant was in control of Mission Street at the place of the occurrence. . . . ⁶

Subparagraph 3 of instruction 5 was added by the superior court in response to Kodiak's objection to instruction 21, which articulated the elements of premises liability. ⁷ As we have mentioned in this appeal, Janas contends that the giving of instruction 5, as modified, was prejudicial error. At trial, Janas' counsel stated:

Your Honor, I wouldn't want an instruction that indicated to the jury that we had the burden of proving that Kodiak Electric Association had control of the street and that if we didn't prove that we lost the case.

The Court: Well, the burden of proof instruction doesn't say that. The burden of proof instruction is intended to be understood alternatively anyway and it is just if this issue is important to you, this party has the burden of proving it.

Later, after reviewing the proposed instructions, Janas' counsel objected to the use of the conjunctive 'and' between the three clauses of instruction 5, on the basis that under some of the theories of liability advanced it would not be necessary for her to prove that Kodiak Electric controlled the street in question. Upon the trial court's agreeing to delete 'and', counsel for Janas further requested that the third phrase of instruction 5 be cross-referenced to instruction 21, the possessor of land instruction: '. . . I want it in a position where it doesn't indicate to the jury I have to prove it rather than it indicates I have to prove it in connection with that problem.' The trial judge then responded: 'Well, . . . I think that's clear to (sic) the other instruction.' Janas' counsel asked if there would be any objection to his explaining instruction 5 to the jury and the court replied, 'No, you can certainly talk about any of these instructions. . . . and if you want to point out to the jury you have a theory other than the theory encompassed in 21 that is independent of it and totally unrelated to it, you certainly may say that as long as you don't tell the jury that it's the burden of the defendant, to prove some other theory.'

The gist of Janas' argument on this point is that instruction 5 precluded recovery against Kodiak under a theory of ordinary negligence and had the effect of limiting the jury to consideration of only the single theory of premises liability. In other words, the superior court's ruling on instruction 5 was tantamount to a ruling that, as a matter of law, Kodiak Electric owed on duty toward Janas McLinn other than that which might spring from Kodiak Electric's control of the street at the place where the accident occurred. Janas suggests three alternative reasons why the jury should have received an ordinary negligence instruction requiring her to prove only negligence and proximate cause. First, appellant contends that, as a matter of law, one who places an obstruction on a public highway, even though without negligence, is under an affirmative duty to use ordinary care under the circumstances to prevent injury to others resulting from the dangerous situation created. Under this theory there is no need to prove control of the highway. Second, appellant argues that William Burke's deposition testimony, that a Kodiak employee waved him through the area, demonstrates an assumption of a duty on Kodiak's part to exercise reasonable care to prevent injury to her. Under this second 'negligent signal' theory, if the jury accepted Burke's deposition testimony, they would necessarily have to conclude that Kodiak assumed control through its employee. ⁸ Thirdly, Janas argues that Kodiak was under a statutory duty to assume control of the area by the posting of flagmen pursuant to the Manual on Uniform Traffic Control Devices for Streets and Highway. ⁹ Under this theory Kodiak was vested with control of the street, as a matter of law, and the remaining burden on Janas would be to prove ordinary negligence under the circumstances.

Comment on Janas' third alternative theory of ordinary negligence will be deferred to a later section of this opinion. As to Janas' first two arguments relating to her ordinary negligence contentions, we comment in no greater depth than to note that they appear to be sound negligence theories. We find compelling reasons for concluding that, even if the evidence justifies instructing the jury under an ordinary negligence theory, the giving of instruction 5 in the circumstances of this case was not error.

Instruction 5 did not prohibit the jury from considering ordinary negligence theories of liability. Instruction 5 was a burden of proof instruction and did not preclude recovery under an ordinary negligence theory if Janas did not prove control, by Kodiak, of the street. The instruction placed on Janas the burden of proving negligence, proximate cause, and control. Which factors would be relevant was dependent upon the substantive law theory the jury employed. Under instruction 21, control would necessarily have to be proved to predicate liability. Under theories of ordinary negligence, control need not be proved. We note that the superior court judge...