Urena v. Schindler Elevator Corporation et al
Filing
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ORDER re CERTIFICATION of Issue to State See PDF order. Signed by Judge John W. Sedwick on 3/3/19. (GMM, CHAMBERS STAFF)
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UNITED STATES DISTRICT COURT
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DISTRICT OF ALASKA
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ROBERTA URENA,
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Plaintiff,
vs.
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SCHINDLER ELEVATOR
CORPORATION and COLUMBIA
SUSSEX,
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Defendants.
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3:15-CV-00223-JWS
ORDER CERTIFYING QUESTION
TO THE ALASKA SUPREME COURT
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Pursuant to the request of Plaintiff, the Court has considered whether to exercise
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its discretion to certify a question of Alaska state law to the Alaska Supreme Court
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under Alaska Appellate Rule 407(a). Under the rule, this court may certify to the Alaska
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Supreme Court a question of state law “which may be determinative of the cause then
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pending in [this court] and as to which it appears to [this court] there is no controlling
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precedent in the decision of the supreme court of this state.”1 “The decision to certify a
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question to a state supreme court rests in the ‘sound discretion’ of the district court.”2
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Alaska R. App. P. 407(a).
Eckard 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,
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2013, at the Hilton Hotel in downtown Anchorage. Plaintiff Roberta Urena was the sole
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passenger in the Hilton elevator when it made an unexpected safety stop. Plaintiff
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alleges that the elevator plunged in a free fall for eight floors before coming to a stop.
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Plaintiff was trapped in the elevator between the fifth and sixth floors and had to be
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extracted by the Anchorage Fire Department. She alleges that she suffered injuries
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because of the fall. Defendants Schindler Elevator Corporation, the entity which
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maintained the subject elevator at the time of the incident, and Columbia Sussex, the
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owner of Hilton Hotel and its elevators, acknowledge that there was an unexpected
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emergency stop but dispute that the elevator did a free fall and dispute the distance the
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elevator dropped during the stop.
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Plaintiff argues that this court should treat Defendants as “common carriers”
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thereby subjecting them to a higher standard of care in relation to their elevator
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passengers. She notes that the Alaska Supreme Court has applied the heightened
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standard to airline operators.3 In doing so, the Court reasoned that “a general duty of
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due care instruction is inadequate with respect to common carriers transporting
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passengers for hire.”4 Plaintiff asserts that while the Supreme Court has not articulated
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a test for determining whether a defendant is a common carrier, elevators are akin to
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airplanes because passengers of each “are completely at the mercy of the carrier and
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are entitled to assume that the highest degree of care is being taken for their safety.”5
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Given the similar vulnerabilities between an airline passenger and an elevator
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passenger, Plaintiff argues that Alaska law would treat Defendants as common carriers.
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Widmyer v. Se. Skyways, Inc., 584 P.2d 1 (Alaska 1978).
Id. at 5.
Id. (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
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heightened standard of care to the context of an airline and its passengers and would
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not extend its application any further. In support they cite State v. Johnson6 where the
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Alaska Supreme Court explained that a heightened standard of care does not
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categorically apply to situations where the plaintiff and the defendant have a relationship
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that is comparable to an airline and its passengers.7 They argue the appropriate
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standard of care under Alaska law is simply that the defendant exercise care that is
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reasonable and prudent under the circumstances.8
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Defendant also points to AS 05.20.010 in support of their argument. In that
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statute, the state legislature declared that an owner or operator of ski equipment and
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devices, as defined in AS 05.20.120, “is not considered a common carrier.”9 A “device”
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under AS 05.20.120 includes those items “designed and operated for the conveyance or
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movement of persons and that is used as a source of or aids in the promoting of
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entertainment, pleasure, play, relaxation, or instruction including but not limited to ski
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tows, roller coasters, merry-go-rounds, and Ferris wheels.”10 Defendants assert that
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elevators are more akin to these ski “devices” than to airplanes.
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The issue of common carrier liability for elevator owners has been decided in a
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number of other states. As outlined by the Maryland Court of Special Appeals in John
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Hopkins Hospital v. Correia,11 21 states, including four states within the Ninth Circuit,
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have concluded that elevator owners are held to the standard of care of common
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2 P.3d 56 (Alaska 2000).
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Id. at 60 n.15
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Id. 60.
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AS 05.20.010.
AS 05.20.120.
921 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
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that elevator owners are held to an ordinary care standard.12
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In the absence of controlling precedent by the Alaska Supreme Court, this court
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would normally attempt to predict how the Alaska Supreme Court would resolve the
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issue based upon related case law. However, it is difficult to predict state law in this
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instance given the Alaska Supreme Court’s existing case law on standards of care, the
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legislature’s enactment of AS 05.20.010, and the split among other states. This
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uncertainty, combined with the fact that the standard of care could be determinative,
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leads the court to conclude that it is presented with a rare instance where certification of
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the issue under Alaska Appellate Rule 407(a) is appropriate. Accordingly, this Court
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respectfully requests the Alaska Supreme Court to answer the certified questions
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presented.
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CERTIFIED QUESTIONS
Pursuant to Alaska Rule of Appellate Procedure 407(a), the United States District
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Court for the District of Alaska respectfully requests the Alaska Supreme Court to
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answer the following certified questions of Alaska law:
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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.?
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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?
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The Alaska Supreme Court’s answer to these related questions may be determinative of
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Plaintiff’s claim in this case. The Alaska Supreme Court may, in its discretion, answer
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these questions in any form that it chooses.
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Id. at 841-44.
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CONCLUSION
The parties shall notify this court whether the Alaska Supreme Court accepts the
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certified question in a joint report to be filed within 7 days of the Alaska Supreme Court’s
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decision.
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The Clerk of Court shall provide a signed copy of this order under the official seal
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of the United States District Court for the District of Alaska. The Clerk of Court shall
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also provide a copy of the record in this case, in whole or in part, to the Alaska Supreme
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Court upon request.
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DATED this 3rd day of March 2019.
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/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
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