Alaska SC reinstates wrongful death suit against restaurant

By Jessica M. Karmasek | May 2, 2012


JUNEAU, Alaska (Legal Newsline) - The Alaska Supreme Court ruled last week that a lower court erred in dismissing a wrongful death lawsuit against a fast food restaurant.

In March 2006, Lawrence W. Hayward was driving a pickup truck eastbound on East Fifth Avenue in Anchorage when he tried to use a shortcut to enter a Wendy's.

As Hayward was crossing the westbound traffic lanes, a westbound motorcycle driven by Shawn Mickelsen collided with Hayward's truck.

Mickelsen died as a result of his injuries.

Mickelsen's estate then sued Wendy's owners S&S Properties LLC, which owns the building and land, and North-Wend Foods Inc., which operates the restaurant.

The estate sued for wrongful death, arguing that the defendants were negligent in creating a dangerous condition on its land and failing to take steps to make the condition safe by warning eastbound drivers not to use the exit driveway.

The Third Judicial District Superior Court dismissed the complaint, holding that the defendants had no duty to guard against such risks created by the conduct of third parties.

The state's high court, in its 18-page ruling Friday, reversed the superior court's decision and remanded the case.

The Court called the lower court's reading of the complaint "unduly narrow."

"Mickelsen's complaint adequately alleges that Wendy's breached that duty by creating and allowing the continued existence of a dangerous condition, and that Wendy's breach proximately caused the damages at issue in this case," Chief Justice Walter L. Carpeneti wrote.

"This is sufficient to overcome a motion to dismiss for failure to state a claim for relief."

The restaurant, the Court said, owed a duty of care to Mickelsen.

"Wendy's is in the business of providing an entry and exit to its customers. Holding that a business has a duty to conduct one of its core operations in a safe manner does not involve the transformation of the law of negligence that would have resulted had we held, in Schumacher, that the city had a duty to protect all who entered its land from harming themselves through self-destructive behavior," Carpeneti wrote.

Wendy's also had a duty to maintain its property in a "reasonably safe manner" in view of all relevant circumstances, the Court said.

"This duty applied to those entering and exiting Wendy's and to those who might be affected by those entering and exiting Wendy's, pedestrian or otherwise," the chief justice wrote.

"It may yet be proper for the superior court to dismiss Mickelsen's claim on summary judgment, or it may be that the case must go to trial. But Mickelsen's claim cannot be dismissed as a matter of law based on Wendy's owing no duty of care to passing motorists allegedly endangered by the artificial conditions on Wendy's property."

From Legal Newsline: Reach Jessica Karmasek by email at

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