Urena v. Schindler Elevator Corporation et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
ROBERTA URENA, )
)
Plaintiff, ) 3:15-CV-00223-JWS
)
vs. ) ORDER CERTIFYING QUESTION
) TO THE ALASKA SUPREME COURT
)
)
SCHINDLER ELEVATOR )
CORPORATION and COLUMBIA )
SUSSEX, )
)
)
Defendants. )
)
Pursuant to the request of Plaintiff, the Court has considered whether to exercise
its discretion to certify a question of Alaska state law to the Alaska Supreme Court
under Alaska Appellate Rule 407(a). Under the rule, this court may certify to the Alaska
Supreme Court a question of state law “which may be determinative of the cause then
pending in [this court] and as to which it appears to [this court] there is no controlling
precedent in the decision of the supreme court of this state.”1 “The decision to certify a
question to a state supreme court rests in the ‘sound discretion’ of the district court.”2
1Alaska R. App. P. 407(a).
2Eckard Brandes, Inc. v. Riley, 338 F.3d 1082, 1087 (9th Cir. 2003).
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DISCUSSION
This lawsuit arises out of an elevator malfunction that occurred on September 21,
2013, at the Hilton Hotel in downtown Anchorage. Plaintiff Roberta Urena was the sole
passenger in the Hilton elevator when it made an unexpected safety stop. Plaintiff
alleges that the elevator plunged in a free fall for eight floors before coming to a stop.
Plaintiff was trapped in the elevator between the fifth and sixth floors and had to be
extracted by the Anchorage Fire Department. She alleges that she suffered injuries
because of the fall. Defendants Schindler Elevator Corporation, the entity which
maintained the subject elevator at the time of the incident, and Columbia Sussex, the
owner of Hilton Hotel and its elevators, acknowledge that there was an unexpected
emergency stop but dispute that the elevator did a free fall and dispute the distance the
elevator dropped during the stop.
Plaintiff argues that this court should treat Defendants as “common carriers”
thereby subjecting them to a higher standard of care in relation to their elevator
passengers. She notes that the Alaska Supreme Court has applied the heightened
standard to airline operators.3 In doing so, the Court reasoned that “a general duty of
due care instruction is inadequate with respect to common carriers transporting
passengers for hire.”4 Plaintiff asserts that while the Supreme Court has not articulated
a test for determining whether a defendant is a common carrier, elevators are akin to
airplanes because passengers of each “are completely at the mercy of the carrier and
are entitled to assume that the highest degree of care is being taken for their safety.”5
Given the similar vulnerabilities between an airline passenger and an elevator
passenger, Plaintiff argues that Alaska law would treat Defendants as common carriers.
3Widmyer v. Se. Skyways, Inc., 584 P.2d 1 (Alaska 1978).
4Id. at 5.
5Id. (discussing why airline passengers are owed a heightened duty of care).
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Defendants argue that the Alaska Supreme Court has limited the common carrier
heightened standard of care to the context of an airline and its passengers and would
not extend its application any further. In support they cite State v. Johnson6 where the
Alaska Supreme Court explained that a heightened standard of care does not
categorically apply to situations where the plaintiff and the defendant have a relationship
that is comparable to an airline and its passengers.7 They argue the appropriate
standard of care under Alaska law is simply that the defendant exercise care that is
reasonable and prudent under the circumstances.8
Defendant also points to AS 05.20.010 in support of their argument. In that
statute, the state legislature declared that an owner or operator of ski equipment and
devices, as defined in AS 05.20.120, “is not considered a common carrier.”9 A “device”
under AS 05.20.120 includes those items “designed and operated for the conveyance or
movement of persons and that is used as a source of or aids in the promoting of
entertainment, pleasure, play, relaxation, or instruction including but not limited to ski
tows, roller coasters, merry-go-rounds, and Ferris wheels.”10 Defendants assert that
elevators are more akin to these ski “devices” than to airplanes.
The issue of common carrier liability for elevator owners has been decided in a
number of other states. As outlined by the Maryland Court of Special Appeals in John
Hopkins Hospital v. Correia,11 21 states, including four states within the Ninth Circuit,
have concluded that elevator owners are held to the standard of care of common
62 P.3d 56 (Alaska 2000).
7Id. at 60 n.15
8Id. 60.
9AS 05.20.010.
10AS 05.20.120.
11921 A.2d 837 (Md. Ct. Spec. App. 2007).
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carriers, and 14 states, including three other states within the Ninth Circuit, have held
that elevator owners are held to an ordinary care standard.12
In the absence of controlling precedent by the Alaska Supreme Court, this court
would normally attempt to predict how the Alaska Supreme Court would resolve the
issue based upon related case law. However, it is difficult to predict state law in this
instance given the Alaska Supreme Court’s existing case law on standards of care, the
legislature’s enactment of AS 05.20.010, and the split among other states. This
uncertainty, combined with the fact that the standard of care could be determinative,
leads the court to conclude that it is presented with a rare instance where certification of
the issue under Alaska Appellate Rule 407(a) is appropriate. Accordingly, this Court
respectfully requests the Alaska Supreme Court to answer the certified questions
presented.
CERTIFIED QUESTIONS
Pursuant to Alaska Rule of Appellate Procedure 407(a), the United States District
Court for the District of Alaska respectfully requests the Alaska Supreme Court to
answer the following certified questions of Alaska law:
Whether the duty of care owed to elevator passengers by an elevator owner
is that of a common carrier or that which is reasonable and prudent under the
circumstances.?
Whether the duty of care owed to elevator passengers by a company that
provides services and maintenance to elevators is that of a common carrier
or that which is reasonable and prudent under the circumstances?
The Alaska Supreme Court’s answer to these related questions may be determinative of
Plaintiff’s claim in this case. The Alaska Supreme Court may, in its discretion, answer
these questions in any form that it chooses.
12Id. at 841-44.
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CONCLUSION
The parties shall notify this court whether the Alaska Supreme Court accepts the
certified question in a joint report to be filed within 7 days of the Alaska Supreme Court’s
decision.
The Clerk of Court shall provide a signed copy of this order under the official seal
of the United States District Court for the District of Alaska. The Clerk of Court shall
also provide a copy of the record in this case, in whole or in part, to the Alaska Supreme
Court upon request.
DATED this 3rd day of March 2019.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
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