negligence per se instruction in Alaska

1979The most important of these allegations pertains to the negligence per se instruction which the trial court gave regarding certain Federal Aviation Regulations. 9 Steiner’s estate cites Ferrell v. Baxter, 484 P.2d 250, 261 (Alaska 1971), for the proposition stated therein, that: [B]efore a plaintiff is entitled to an instruction defining the violation as negligence per se, he must first demonstrate that he is among the protected class and, second, that the injury was caused by a harm against which the law was designed to protect.

1977“Just as the automobile driver must know and obey the rules of the road, the contractor must know and obey the rules of his trade.” Bachner, supra at 441 . .Thus the court could reasonably have concluded, in its discretion, that the U.B.C. was not so “obscure” or “unknown” to warrant a refusal to give the negligence per se instruction. “ ‘Obviously cases will be relatively infrequent in which legislation directed to the safety of persons or property will be so obsolete, or so unreasonable, or for some other reason inapplicable to the case, that the court will take this position; but where the

1992In determining whether to give a negligence per se instruction, the trial court must first “determine whether the conduct at issue lies within the ambit of the statute or regulation in question, by applying the four criteria set out in the Restatement (Second) of Torts § 286 (1965).” State Mechanical, Inc. v. Liquid Air, Inc., 665 P.2d 15, 18 (Alaska 1983) (footnote omitted).

1992In determining whether to give a negligence per se instruction, the trial court must first “determine whether the conduct at issue lies within the ambit of the statute or regulation in question, by applying the four criteria set out in the Restatement (Second) of Torts § 286 (1965).” State Mechanical, Inc. v. Liquid Air, Inc., 665 P.2d 15, 18 (Alaska 1983) (footnote omitted).

1983The Northern Lights court distinguished McLinn v. Kodiak Electric Association, 546 P.2d 1305 (Alaska 1976), a case in which the trial court had exercised its discretion in deciding that a statute should not be incorporated into a negligence per se instruction.

1977There we held that the trial court did not abuse its discretion by failing to give a negligence per se instruction because it felt that “a reasonably prudent person . . . would not have been aware of the applicability” of the regulation since it was imprecisely worded. 12 We noted that under Ferrell a traffic law would not be substituted as the applicable standard of care where it “is somewhat obscure and unknown to the motoring public generally.” McLinn, supra at 1314 .

1992Harned v. Dura Corp., 665 P.2d 5, 12 (Alaska 1983).

1985When this case was previously before us in Harned v. Dura Corporation, 665 P.2d 5 , Dura argued that the ASME Code was not the proper basis for a negligence per se instruction.

1983See McLinn v. Kodiak Electric Association, 546 P.2d 1305, 1313-14 (Alaska 1976); Northern Lights Motel v. Sweaney, 561 P.2d 1176, 1183-84 (Alaska 1977); Bachner v. Rich, 554 P.2d 430, 440-41 (Alaska 1979).

1977“Just as the automobile driver must know and obey the rules of the road, the contractor must know and obey the rules of his trade.” Bachner, supra at 441 . .Thus the court could reasonably have concluded, in its discretion, that the U.B.C. was not so “obscure” or “unknown” to warrant a refusal to give the negligence per se instruction. “ ‘Obviously cases will be relatively infrequent in which legislation directed to the safety of persons or property will be so obsolete, or so unreasonable, or for some other reason inapplicable to the case, that the court will take this position; but where the

2019Alaska Civil Rule 8(d) provides that “[a]verments in a pleading to which a responsive pleading is required . . . are admitted when not denied in the responsive pleading.” Ebli relies on this rule to argue that DOC, having tacitly admitted liability, cannot use Alaska Civil Rule 15(a)’s amendment process “to render null the fair but harsh effects of Civil Rule 8(d)’s automatic admission provision.” Except for the limited circumstances in which a party is allowed to amend a pleading as a matter of course under Civil Rule 15(a), “a party may amend the party’s pleading only by leave of court or by

2019Alaska Civil Rule 8(d) provides that “[a]verments in a pleading to which a responsive pleading is required . . . are admitted when not denied in the responsive pleading.” Ebli relies on this rule to argue that DOC, having tacitly admitted liability, cannot use Alaska Civil Rule 15(a)’s amendment process “to render null the fair but harsh effects of Civil Rule 8(d)’s automatic admission provision.” Except for the limited circumstances in which a party is allowed to amend a pleading as a matter of course under Civil Rule 15(a), “a party may amend the party’s pleading only by leave of court or by

2019Alaska Civil Rule 8(d) provides that “[a]verments in a pleading to which a responsive pleading is required . . . are admitted when not denied in the responsive pleading.” Ebli relies on this rule to argue that DOC, having tacitly admitted liability, cannot use Alaska Civil Rule 15(a)’s amendment process “to render null the fair but harsh effects of Civil Rule 8(d)’s automatic admission provision.” Except for the limited circumstances in which a party is allowed to amend a pleading as a matter of course under Civil Rule 15(a), “a party may amend the party’s pleading only by leave of court or by

1995See Patrick v. Sedwick, 391 P.2d 453 (Alaska 1964) (applying rebuttable presumption of negligence where doctor failed to make sufficiently detailed operative notes). 10 .

1986See Osborne v. Russell, 669 P.2d 550, 555 (Alaska 1983); Grothe v. Olafson, 659 P.2d 602 , 607 n. 12 (Alaska 1983).

1986See Osborne v. Russell, 669 P.2d 550, 555 (Alaska 1983); Grothe v. Olafson, 659 P.2d 602 , 607 n. 12 (Alaska 1983).

1983The superior court had previously instructed the jury that: When . .. the attorneys of both sides stipulate or agree as to the existence of a fact, the Jury must, unless otherwise instructed, accept the stipulation and regard that fact as proved. .Harned contends “that was the only objection to the application of the negligence per se rule which was raised, briefed or argued below.” .In Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961), this court stated: In this connection the defendants argue that, if there are any grounds for upholding the summary judgment on their behalf, regardless of whet

1983The superior court had previously instructed the jury that: When ... the attorneys of both sides stipulate or agree as to the existence of a fact, the Jury must, unless otherwise instructed, accept the stipulation and regard that fact as proved. [20] Harned contends "that was the only objection to the application of the negligence per se rule which was raised, briefed or argued below." [21] In Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961), this court stated: In this connection the defendants argue that, if there are any grounds for upholding the summary judgment on their behalf, regardless

1983See McLinn v. Kodiak Electric Association, 546 P.2d 1305, 1313-14 (Alaska 1976); Northern Lights Motel v. Sweaney, 561 P.2d 1176, 1183-84 (Alaska 1977); Bachner v. Rich, 554 P.2d 430, 440-41 (Alaska 1979).

1983Northern Lights Motel v. Sweaney, 561 P.2d 1176, 1184 (Alaska 1977), established that the trial court has broad discretion to adopt an applicable statute or regulation as a standard of reasonable care even in the face of an argument that the provision was unknown and obscure.

1983See Vance v. United States, 355 F.Supp. 756, 761 (D.Alaska 1973).

1983If the consumer involved in this case were a minor rather than an alleged intoxicated person, it would be logical to conclude that the statute was enacted by the Legislature to protect minors. 355 F.Supp. at 759 .

1981Citing Ferris v. Chugach Electric Ass’n, 557 P.2d 763, 767 (Alaska 1976), appellant maintains that appellee was required to show, as a prerequisite to the giving of a negligence per se instruction, that systematic inspection would have revealed the defect.

1981Citing Ferris v. Chugach Electric Ass’n, 557 P.2d 763, 767 (Alaska 1976), appellant maintains that appellee was required to show, as a prerequisite to the giving of a negligence per se instruction, that systematic inspection would have revealed the defect.

1981The test for determining whether there is sufficient evidence to support a negligence per se instruction is “whether the facts and resulting inferences are such that reasonable people, viewing the evidence in the light most favorable to the party seeking the instruction could justifiably have different views on the question.” Godfrey v. Hemenway, 617 P.2d 3, 7-8 (Alaska 1980).

1980See Lopez v. Brown, 495 P.2d 64, 66 (Alaska 1972).