Sulzbach v. City & Borough of Sitka, S-17853

CourtSupreme Court of Alaska (US)
Writing for the CourtWINFREE, CHIEF JUSTICE.
Docket NumberS-17853
Decision Date16 September 2022



No. S-17853

Supreme Court of Alaska

September 16, 2022

Appeal from the Superior Court No. 1 SI-17-00237 CI of the State of Alaska, First Judicial District, Sitka, The Honorable M. Jude Pate, Judge.

Mark Choate, Choate Law Firm LLC, Juneau, for Appellants.

Timothy W. Bowman, Farley & Graves, P.C., Anchorage, for Appellee City & Borough of Sitka. No appearance by Appellee John T. Ferrick.

Before: Winfree, Chief Justice, Maassen, Carney, Borghesan, and Henderson, Justices.




A city allowed an independent nonprofit organization to host a public event at a city facility. The nonprofit organization arranged for a volunteer to hang decorations in the facility; a decoration fell, injuring an event participant. The injured participant sued the city, but not the nonprofit organization, for negligence. The city brought a


third-party allocation of fault claim against the volunteer. The parties sought summary judgment, and the trial court concluded that, under federal law, the volunteer could not be held financially responsible for the accident and that the city could not be held vicariously liable for the volunteer's actions. The remaining negligence issues were decided at a jury trial; the jury determined that the volunteer and the city had not been negligent and therefore were not liable for the accident. The event participant appeals. As set forth below, we affirm.


A. Facts

Harrigan Centennial Hall is an event facility owned by the City and Borough of Sitka. The City allowed the Alaska Day Organization, an independent nonprofit entity, to host Sitka's 2016 Alaska Day celebration at Centennial Hall without cost. John Ferrick volunteered with the Alaska Day Organization to help decorate Centennial Hall. Ferrick had previously decorated there but it since had been renovated, and he attended a training session with a facility employee that involved "looking at the ceiling and going over the stage lighting and all of the logistics in the new facility [;]... one of those items was decorating."

The City provided a mechanical lift that Ferrick used to hang ten cloth lantern decorations, approximately five-and-a-half-pounds each, from the facility's ceiling. While Ferrick was hanging the lanterns, a dance group - including Sandy Sulzbach-rehearsed on the facility's stage. Ferrick temporarily fastened the lanterns, planning to level their height before fixing them more securely, then left the facility for about 15 minutes. While Ferrick was gone a lantern fell, striking Sulzbach's "head and upper back." An ambulance transported Sulzbach to the hospital, where she was diagnosed with a concussion and released.


B. Proceedings

Sulzbach and her husband sued the City, alleging its negligence caused them harm.[1] The City then brought a third-party complaint against Ferrick, alleging his negligence was the "sole, direct and proximate cause" of Sulzbach's injuries and seeking to apportion fault accordingly.[2] Neither Sulzbach nor the City brought a claim against the Alaska Day Organization.

1. Summary judgment

Each party moved for summary judgment.[3] Sulzbach argued that Ferrick was negligent and that the City was vicariously liable for his actions as a matter of law.[4] The City argued that it owed Sulzbach no independent duty (i.e., the City was not negligent) and that it was not vicariously liable for Ferrick's negligence. Ferrick, self-represented,


argued that he was not negligent and that he was shielded from liability by the federal Volunteer Protection Act of 1997.[5]

The trial court concluded that there were genuine issues of fact precluding summary judgment about whether the City owed Sulzbach a duty of care and whether Ferrick owed Sulzbach a duty of care and breached it. But the trial court concluded as a matter of law that the City could not be held vicariously liable for Ferrick's negligence, if any, because Ferrick and the City had "no predicate contractor-contractee relationship." The court reasoned that Ferrick was affiliated only with the independent nonprofit Alaska Day Organization and that his work did not benefit the City. The court also agreed with Ferrick that the Volunteer Protection Act shielded him from liability for ordinary negligence, but the court noted that at trial the City could allocate fault to "Ferrick as a person 'otherwise released from liability' under AS 09.17.080(a)."

2. Trial

The trial court's summary judgment decision prohibited recovery from Ferrick and any argument that the City was vicariously liable for Ferrick's actions; at a jury trial Sulzbach thus argued almost exclusively that the City was negligent. The City argued that it was not negligent, implying that any negligence was attributable to Ferrick. Ferrick testified at trial, but he did not participate at the trial as a party.

Sulzbach primarily testified about events after the lantern fell and the extent of her injuries. She conceded having seen Ferrick using the mechanical lift, but she said that she did not think the lanterns were dangerous and that no one warned her about Ferrick's activities.


Ferrick testified about his volunteer relationship with the Alaska Day Organization and about hanging the decorations; he said that he had hung decorations at Centennial Hall several times, although not since the facility renovation, and that his wife usually helped him. Ferrick said he initially hung the lanterns using a temporary fastening system so that he could more easily level their height before securing them. Ferrick asserted that the temporary placement of the lanterns "was secure[] under normal circumstances," but he "speculated]" that a strong wind may have dislodged one.

Ferrick also testified about the dance group. Ferrick said that the dancers initially were close to the stage while he was working and that they mostly stayed there, out of his way. Ferrick said that he never warned the dancers about being under the lanterns. Ferrick said that he was out of the room when the lantern fell and that it was only after he returned that he learned the dancers had moved under the lanterns.

Donald Kluting, Centennial Hall's manager, testified during both sides' evidentiary presentations. The trial court initially did not allow Sulzbach to ask Kluting leading questions. The court later reconsidered, and it allowed leading questions during Sulzbach's re-direct examination of Kluting. Kluting estimated that the bottom of the lanterns hung less than eight feet from the ground and that he could nearly reach them with an outstretched arm. He said the lanterns were "lightweight," "collapsible," had no "sharp points," and their shape made it unlikely that all of a lantern's mass would fall directly on someone's head. Kluting testified that the lanterns probably did not present a "dangerous condition" and that it was "debatable" whether the decoration could hurt anyone. Kluting stated that he thought the risk of injury from Ferrick's hanging method was within reasonable "safety margins." Kluting said that the dancers were specifically told someone would be hanging decorations and "informed to stay out from underneath" the lanterns. He also said that some "dancers ... told [him] that they had been warned" about being under the lanterns.


The Centennial Hall building supervisor testified that he did not know until Ferrick arrived that decorating would take place and had not consulted with Ferrick in detail about hanging the lanterns. He said that he did not remember talking to the dancers before the incident and that the dancers did not affirmatively "indicate [to him] that they knew that they should not be in the area where [Ferrick] was working." A Centennial Hall employee testified generally about responding to the incident. She also testified that the building manager had warned the dancers not to sit near where Ferrick was working and that another lantern had fallen prior to the lantern that struck Sulzbach.

One member of the dance group testified that she did not remember being warned about Ferrick's activities but also that it was "pretty obvious" he was hanging decorations. She said that when the lantern fell she was sitting inches from Sulzbach and that they were 10 to 20 feet from the stage. The dancer explained that the falling lantern also had struck her without causing long-term injuries. A second dancer testified that Ferrick was working toward "the back of the room," away from the stage, when the decoration fell. She said that a Centennial Hall employee had at one point told her to move "because they're going to be hanging the decoration." She said that Ferrick was "fine" with where she was but that after the warning the dancers moved closer to the stage before later moving back under the lanterns once they thought Ferrick's work was complete. She said she did not perceive "any danger" sitting under the decorations. A third dancer testified that Centennial Hall staff told some members of the dance group to move because "[y]ou can't be sitting there while [Ferrick is] hanging above you." She said that dancers moved closer to the stage and away from Ferrick in response to the warning but that they moved back under the lanterns once they believed Ferrick's work was done.

The jury decided neither Ferrick nor the City was negligent.


3. Motions for new trial

Sulzbach sought a new trial.[6] Sulzbach argued that the jury verdict finding Ferrick not negligent was against the clear weight of the evidence.[7] She also argued that the trial court made "a fundamental evidentiary error" by initially not allowing her to ask leading questions of Kluting, an adverse witness.

The trial court ruled that sufficient evidence supported the jury finding that...

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