Harkness v. United States

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
ANGIE HARKNESS, )
)
Plaintiff, ) 3:18-CV-00147-JWS
)
vs. ) ORDER AND OPINION
) [Re: Doc. 32 ]
UNITED STATES OF AMERICA, )
)
Defendant. )
)
I. MOTION PRESENTED
At docket 32, Defendant United States of America moves for summary judgment.
Plaintiff Angie Harkness opposes the motion at docket 35. The United States replies at
docket 36. Oral argument would not be of assistance to the court.
II. DISCUSSION
On January 21, 2015, Plaintiff was driving eastbound on Montgomery Road
located within Fort Wainwright military base in Fairbanks, Alaska. Montgomery Road is
a two-lane road, with one lane traveling in each direction. The road was icy and snowy
due to the blizzard-like weather conditions. Plaintiff’s vehicle was struck by Catherine
Keyse-Sweet’s vehicle, which was traveling in the opposite direction when it crossed
over the median line into Plaintiff’s lane of traffic. The two drivers were injured and
taken to the hospital.
The accident was reported to Fort Wainwright police by Virginia Tillett, who was
driving behind Keyse-Sweet’s vehicle and witnessed the accident. Military policy officer
and traffic investigator Sergeant Stephan Kang arrived at the scene shortly after the
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accident and conducted an investigation. His job was to identify the facts and
circumstances surrounding the accident.1 He took pictures of Montgomery Road and
the accident scene and obtained a sworn written statement from the eye witness. He
later interviewed the two drivers involved. He then issued a report that included his
sworn statement and the statements from the involved drivers and the witness.2 He
created a sketch reconstructing the vehicles’ positions during the accident.3
In his report, Kang identified a defect in the shoulder of the road on the side
where Keyse-Sweet’s vehicle was traveling. He described a “38 foot long and 1 foot
wide ditch” on the edge of the roadway.4 He concluded that Keyse-Sweet must have
driven into that ditch and then steered left to pull out of it, overcorrecting and driving into
oncoming traffic. He wrote, “I believe there to be more fault on the defective roadway,
versus driver overcorrection to get out of it. Had the road shoulder been properly
maintained, there would have been no accident.”5
Plaintiff filed suit against the United States under the Federal Tort Claims Act,
arguing that the U.S. army negligently failed to maintain the roadway and shoulder,
thereby causing the accident and Plaintiff’s injuries.6 The complaint relies on Sergeant
Kang’s report. Discovery concluded on February 18, 2020. The United States
thereafter filed this motion for summary judgment, arguing that Plaintiff has not
presented sufficient admissible evidence to establish a triable claim for negligence.
1Doc. 35-1 at p. 27.
2Doc. 33-3.
3Doc. 33-5 at p. 1.
4Doc. 33-3 at p. 24.
5Id.
6Harkness did not present any evidence that the roadway itself was maintained
negligently. Indeed, she did not address the issue in her response brief. The case is based
solely on the condition of the shoulder of the roadway.
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III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”7 The materiality
requirement ensures that “[o]nly disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary judgment.”8
Ultimately, “summary judgment will not lie if the . . . evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”9 However, summary judgment is
mandated “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.”10
The moving party has the burden of showing that there is no genuine dispute as
to any material fact.11 Where the nonmoving party will bear the burden of proof at trial
on a dispositive issue, the moving party need not present evidence to show that
summary judgment is warranted; it need only point out the lack of any genuine dispute
as to material fact.12 Once the moving party has met this burden, the nonmoving party
must set forth evidence of specific facts showing the existence of a genuine issue for
trial.13 All evidence presented by the non-movant must be believed for purposes of
summary judgment and all justifiable inferences must be drawn in favor of the
7Fed. R. Civ. P. 56(a).
8Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
9Id.
10Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
11Id. at 323.
12Id. at 323-25.
13Anderson, 477 U.S. at 248-49.
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non-movant.14 However, the non-moving party may not rest upon mere allegations or
denials but must show that there is sufficient evidence supporting the claimed factual
dispute to require a fact-finder to resolve the parties’ differing versions of the truth at
trial.15
IV. DISCUSSION
Under Alaska law, which is applicable to this FTCA action,16 the elements of a
cause of action for the tort of negligence are as follows: (1) a duty of care owed by
defendant to plaintiff; (2) breach of that duty; (3) proximate causal connection between
the breach and the harm; and (4) actual harm.17 The United States argues that Plaintiff
cannot establish the first three elements of her case, and thus summary judgment is
appropriate.
Duty and Breach
The United States argues that it had no duty to maintain the shoulder of the road.
It argues that the evidence shows the ditch was located on the shoulder and outside of
the roadway itself and that under the applicable military regulations any areas outside
the “normal vehicular traffic area” are not required to be designed and maintained as a
roadway.18 It argues that Plaintiff has not produced any evidence to show that it has a
duty in relation to the shoulder, nor has it produced any evidence to show that the
existence of a rut would be a breach of any such duty.
14Id. at 255.
15Id. at 248-49.
16Bolt v. United States, 509 F.3d 1028, 1031 (9th Cir. 2007) (“Even when the injury
occurs on federal property, the finding of negligence must be based upon state law” (quoting
Lutz v. United States, 685 F.2d 1178, 1184 (9th Cir. 1982)).
17Regner v. N. Star Volunteer Fire Dep’t, Inc., 323 P.3d 16, 21 (Alaska 2014).
18Doc. 33 at p. 10 (citing Doc. 33-7 at p. 27).
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The United States’ argument as to duty is overly simplified. While, as the
United States’ argues, the existence of a defendant’s duty in a negligence case is a
question of law that can be decided at the summary judgment phase when “no evidence
tends to suggest that any duty has arisen between a defendant and plaintiff,”19 the
source of such duty can stem from more than just a statute or regulation. If no duty is
imposed by statute or regulation, “the court must determine if the current case falls in
the class of cases controlled by existing precedent.”20 If no applicable case law exists,
then the court must “weigh the public policy considerations enumerated in D.S.W. v.
Fairbanks North Star Borough School District.”21 Those considerations are as follows:
(1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff
suffered injury, (3) the closeness of the connection between the defendant's conduct
and the injury suffered, (4) the moral blame attached to the defendant's conduct, (5) the
policy of preventing future harm, (6) the extent of the burden to the defendant and
consequences to the community of imposing a duty to exercise care with resulting
liability for breach, and (7) the availability, cost and prevalence of insurance for the risk
involved.22
Neither party addresses whether existing precedent encompasses the
undisputed facts here, nor do they apply the public policy considerations to argue their
respective positions on the issue of duty. For example, the Alaska Supreme Court has
held that a landowner “must act as a reasonable person in maintaining his property in a
reasonably safe condition in view of all the circumstances,” but neither party considers
this line of case law as applied to the undisputed fact that there was a significant rut
19Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199, 1205 (Alaska
1998).
20Estate of Mickelsen ex rel. Mickelsen v. N.-Wend Foods, Inc., 274 P.3d 1193, 1199
(Alaska 2012).
21Id.
22D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628 P.2d 554, 555 (Alaska 1981).
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adjacent to the roadway and testimony from Kang that other drivers had at some point
encountered problems with the ditch.23 Additionally, neither party addresses
Restatement (Second) of Torts § 368, which addresses circumstances under which a
duty is owed to individuals who are injured after deviating from an adjoining roadway
onto the land, and whether Alaska has or would apply it.24 Without adequate briefing,
the court cannot conclude as a matter of law that the United States owed “no duty
whatsoever” as to the condition of the road’s shoulder.25 It declines to award summary
judgment based on this element of Plaintiff’s case.
Causation
The United States also argues that Plaintiff has no admissible evidence from
which a jury could find in her favor on the issue of causation. Under Alaska law
negligent conduct may be found to be the proximate cause of harm if it “was more likely
than not a substantial factor in bringing about [the] injury.”26 The United States points
out that there is no admissible evidence to suggest that Keyse-Sweet veered off the
road and into the rut before driving into Plaintiff’s car. The court agrees. While Kang’s
report states that he believes this happened, the admissible evidence does not support
this conclusion. The ditch was located on the shoulder just outside of the roadway
itself.27 There are no witness statements to suggest that Keyse-Sweet’s vehicle veered
onto the shoulder before abruptly pulling left. The eye witness merely stated that
23See Burnett v. Covell, 191 P.3d 985, 990 (Alaska 2008) (quoting Webb v. City and
Borough of Sitka, 561 P.2d 731, 733 (1977)).
24Restatement (Second) of Torts § 368 (1965).
25Arctic Tug, 956 P.2d at 1203.
26P.G. v. State, Dep’t of Health & Human Servs., 4 P.3d 326, 334 (Alaska 2000) (citing
Morris v. Farley Enters., Inc., 661 P.2d 167, 169 (Alaska 1983)).
27Doc. 35-1 at p. 54.
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Keyse-Sweet braked and pulled sharply into on-coming traffic.28 Keyse-Sweet could not
remember the accident and makes no mention of the ditch in her statement. There is no
evidence of skid marks or any other physical evidence from which a juror could infer
that her vehicle drove outside the roadway and into the rut. Indeed, Kang admitted that
he based his conclusion on an assumption stemming from other incidents there and the
fact that drivers generally drove close to the edge of the roadway in the winter.29
Plaintiff asserts that Kang will be a hybrid fact/expert witness and will testify as to
his opinion that the ditch caused the accident. However, as the court previously ruled at
docket 44 in conjunction with the United States’ motion to exclude at docket 37, Plaintiff
cannot call Kang as an expert. Plaintiff failed to identify Kang as an expert as required
by Rule 26(a)(2)(C) and the court’s scheduling order. Moreover, the court notes that
Kang’s qualifications as an expert are in doubt given his declaration wherein he asserts
that he has no training in accident reconstruction and does not consider himself an
expert on the subject.30
Kang, who did not witness the accident, cannot provide his opinion as to
causation as a lay witness under Rule 701.31 Such testimony as to the cause of the
accident based on Kang’s after-the-fact investigation requires specialized knowledge
and experience within the purview of Rule 702.32 Furthermore, Kang only observed the
28Doc. 33-3 at p. 32.
29Doc. 35-1 at pp. 68-69.
30Doc. 36-2.
31Fed. R. Evid. 701 states as follows: If a witness is not testifying as an expert, testimony
in the form of an opinion is limited to one that is: (a) rationally based on the witness's
perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact
in issue; and (c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.
32Cf. United States v. Figueroa-Lopez, 125 F.3d 1241 (9th Cir. 1997) (holding that
testimony of law enforcement officers that the defendant’s actions were consistent with those of
experienced drug traffickers was improperly admitted as lay opinion testimony because such
testimony was necessarily predicated on “demonstrable expertise” in the area of law
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existence of the ditch near the accident scene; he did not see any physical evidence as
to where or how Keyse-Sweet had been driving or that she veered into the ditch.
Therefore, he has no testimony to offer about the involvement of the ditch in the
accident that could possibly qualify as lay witness testimony. Absent Kang’s opinion
that Keyse-Sweet lost control of her car after veering into the ditch, Plaintiff only has
evidence that there was a ditch next to the lane in which Keyse-Sweet was driving.
That is simply not enough for a jury to conclude that the ditch was more likely than not a
substantial factor in causing the accident.
V. CONCLUSION
Based on the preceding discussion, the United States’ motion for summary
judgment at docket 32 is granted. The clerk is directed to issue judgment in favor of
Defendant.
DATED this 13th day of July 2020.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
enforcement and the subjects about which the officers testified were not “common enough” to
be the subject of lay witness testimony); see also Holyz v. Boyd, 2001 WL 37124843, at *6 (D.
N.M., Sept. 17, 2001) (excluding an officer’s opinion testimony as to the speed and degree to
which a driver was driving reasonably because the officer was not presented as an expert and
his opinion was not based on his personal knowledge of the accident at issue but rather on his
post-accident investigation); People v. Steward, 55 P.3d 107, 124 (Colo. 2002) (holding that the
trial court erred in admitting an officer’s testimony about vehicle direction, position, speed and
other deductions about the accident under the guise of a lay opinion).
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