Morrison v. United States of America et al

Filing 110

MEMORANDUM OF DECISION: Judgment for Morrison in the amount of $728,458.00. (See Order for details). Signed by Judge Sharon L. Gleason on 02/22/2019. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF ALASKA

STEVEN D. MORRISON,
Plaintiff,
v.
UNITED STATES OF AMERICA and
CHENEGA INTEGRATED SYSTEMS,
LLC,

Case No. 4:15-cv-00014-SLG

Defendants.

MEMORANDUM OF DECISION
I.

Introduction

This is an action brought against the United States in which Plaintiff seeks
compensation for injuries he suffered after he slipped and fell on January 20, 2012 at an
inspection tent located at the front gate of Eielson Air Force Base. A bench trial in the
case was held in August 2018.
Federal Rule of Civil Procedure 52(a) provides that “in an action tried on the facts
without a jury . . . the court must find the facts specially and state its conclusions of law
separately.” Having considered the testimony of the witnesses, the exhibits admitted into
evidence, and the parties’ arguments and filings, this Court now makes the Findings of
Fact and Conclusions of Law as set forth below. 1

1 This Memorandum of Decision does not purport to recite all of the evidence submitted and arguments
made by the parties. See Fed. R. Civ. P. 52(a) Advisory Committee’s Note (1946 Amendment). (“[T]he
judge need only make brief, definite, pertinent findings and conclusions upon the contested matters;
there is no necessity for over-elaboration of detail or particularization of facts.”).

II.
1.

Findings of Fact

Property Ownership: At all relevant times, the United States designed

and owned the real property at issue in this case, an open-ended drive-through
“Inspection Tent” located at the front gate of Eielson Air Force Base (EAFB), just east
of Fairbanks, Alaska.
2.

Property Manager: At all relevant times, the United States 354 Civil

Engineering Squadron (CES) was the “Property Manager” for the “Inspection Tent.”
3.

Property Maintenance: In the winter of 2011–2012, U.S. personnel

regularly operated snow removal vehicles under the “Inspection Tent” when
necessitated by weather conditions.
4.

Finished Concrete Walkways: The design plans and the final build of

the “Inspection Tent” included “finished concrete” walkways, which were exposed to
outdoor snow and ice conditions during Alaskan winters.
5.

Plaintiff’s Status: On January 20, 2012, Plaintiff Steven Morrison was a

commercial delivery driver for Pacific Alaska Freightways (PAF), attempting entry to
EAFB for a delivery.
6.

Chenega’s Involvement: At all relevant times, the U.S. had contracted

with Defendant Chenega Integrated Systems, LLC (Chenega) for Chenega to perform
“in a safe manner” vehicle safety inspections at the “Inspection Tent.”
7.

Inspection Process: To enter EAFB, the United States requires

commercial drivers such as Morrison to: (a) drive their vehicles to the “Inspection Tent”;
(b) exit their vehicle only when (and as) directed by an armed inspector; (c) open all
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required portions of their vehicle for inspection; (d) wait in an adjoining room; (e) return
to their vehicle only when (and as) directed by an armed inspector; and (f) enter EAFB
if they passed inspection.
8.

United States Participation in Inspections: On occasion, United States

personnel would, at unscheduled times, participate in the vehicle inspection process
under the “Inspection Tent.”
9.

Conditions under Inspection Tent: The area under the “Inspection

Tent” where commercial drivers would walk from their vehicle to the waiting room and
back was often slippery in the winter. The slipperiness was exacerbated by the fact
that the concrete floor surface was not brushed or otherwise textured, and because
many vehicles would idle at the Inspection Tent and their heat would create ice on the
concrete.
10.

Warning to the United States: Months before January 20, 2012,

Timothy D. Horn, site manager for Chenega, notified the government that the area
where Morrison later fell was unreasonably slippery. He asked the United States for
help making it safer, but the government took no action.
11.

Visual Signs/Warnings: At all relevant times, there were no signs or

visual warnings to warn drivers such as Morrison about the potential slipperiness at the
“Inspection Tent.”
12.

Audible Signs/Warnings: Although there were no set procedures,

inspectors would occasionally warn drivers such as Morrison when ordering them to
exit their vehicles of slippery conditions under the “Inspection Tent.” Morrison did not
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receive such a warning on January 20, 2012.
13.

United States Maintenance Efforts: No evidence was presented that the

government made efforts to ensure that the area under the “Inspection Tent” was
maintained with ice melt, sand, or other abrasives that might increase traction for
drivers exiting their vehicles on the finished concrete surface, such as Morrison.
14.

Chenega Employees Issued Cleats: Chenega employees were issued

cleats for use under the “Inspection Tent” in the winter; however, they were not required
to wear them.
15.

Events of January 20, 2012: Morrison was a driver for PAF, attempting

to enter EAFB for a commercial delivery. At the front gate, he was directed to: (a) drive
his vehicle to the “Inspection Tent”; (b) exit his vehicle when directed by an armed
inspector; (c) open all required portions of his vehicle for inspection; (d) wait in an
adjoining room; and (e) return to his vehicle only when (and as) directed by an armed
inspector. Morrison exited his vehicle and went to the waiting room without incident.
Morrison then returned to his vehicle using the same path he had used when he exited
his vehicle. Morrison slipped on the snow/ice covered “finished concrete” under the
“Inspection Tent.” He injured his right knee in the fall. Another PAF driver retrieved
Morrison’s PAF vehicle. A third PAF employee took Morrison directly to a doctor, where
he was diagnosed with a torn right meniscus and a torn right ACL.
16.

Morrison’s Position When He Slipped: At the time of the fall, Morrison

was where he had been told to be by an armed inspector.
17.

Morrison’s Two Prior Knee Injuries: Before January 20, 2012, Morrison

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twice injured his right knee ACL and had related surgery on it.
18.

Morrison’s Right Knee was Asymptomatic and Stable on January

20, 2012: Morrison’s right knee was asymptomatic and stable on the date of the
incident. Morrison had not received any medical care related to his right knee since
April 8, 2010, nearly two years before January 20, 2012.
19.

Right Knee Injury: Morrison heard a “pop” as he lost his footing on

January 20, 2012.
20.

Past Medical Bills: Morrison has undergone four right knee surgeries

since January 20, 2012. Morrison’s total past medical bills were stipulated to be:
$326,088.69 (Exhibit 3).

21.

Past Lost Wages: Morrison’s unrebutted vocational expert, Carl Gann,

opined as to past economic/vocational losses—quantified by Plaintiff’s forensic
economist Hugh Richards. However, the Court will not award lost wages for the period
beginning when Morrison started working at the DOT, which consists of lost overtime.
Based on the Court’s review of Mr. Richard’s calculations, the lost wages for the period
prior to that are approximately $160,000.
22.

Past Alaska Stat. § 09.17.010 Noneconomic Losses: Pursuant to

Alaska Stat. § 09.17.010(c) and Beaulieu v. Elliott, 434 P. 2d 665 (Alaska 1967), a per
diem award of past non-economic losses is appropriate under Alaskan law. The Court
finds Morrison’s past non-economic losses amount to an average of $25.00 per day
from January 20, 2012, to the start of trial (2,391 days), which equals $59,775. In
making this award, the Court finds that on some days Morrison has had only limited
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pain and suffering associated with this injury, and on other days, particularly shortly
after the injury and after each surgery, Morrison has had considerable pain and
suffering associated with this injury.
23.

Future Medical Bills: The Court finds it more likely than not that Morrison

will require at least two right knee full arthroplasties over the balance of his life
expectancy, costing a total of an estimated $204,000.00. However, the Court finds that
10% of this cost should be attributed to the two prior knee injuries; therefore, the Court
finds that Morrison’s future medical bills associated with this injury are $183,600.
Plaintiff’s demonstrative that showed the number of doctor’s visits per month after each
knee injury was quite persuasive in making this allocation.
24.

Future Lost Wages: Morrison did not establish by a preponderance of

the evidence that he will incur any future wage losses as a result of this injury.
Specifically, based upon the Court’s consideration of all of the evidence, the Court was
not persuaded that as a result of this injury, Morrison will need and pursue retraining
and begin a completely new career after he has had his first knee replacement surgery
in a few years.
25.

Future Alaska Stat. § 09.17.010 Noneconomic Losses: Pursuant to

Alaska Stat. § 09.17.010(c) and Beaulieu v. Elliott, 434 P.2d 665 (Alaska 1967), an
award of future noneconomic losses is appropriate under Alaskan law. The Court finds
Morrison’s future non-economic losses associated with this injury associated with this
injury are $70,000. In this regard, the Court has considered the pain and suffering
associated with the anticipated future surgeries.
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III.
1.

CONCLUSIONS OF LAW

Alaskan Substantive Law Applies: This Court applies Alaskan

substantive law and Federal procedural law.
2.

Burden of Proof. Plaintiff has the burden of proving his claim by a

preponderance of the evidence, which means that the trier of fact must be persuaded
by the evidence that the claim is more likely true than not true.
3.

Landowner Liability: In Webb v. City & Borough of Sitka, 561 P.2d 731,

733–34 (Alaska 1977) (superceded in part by AS 09.65.200, as recognized in Univ.
of Alaska v. Shanti, 835 P.2d 1224, 1228 n.5 (Alaska 1992), the Alaska Supreme
Court held: “A landowner or owner of other property must act as a reasonable person
in maintaining his property in a reasonably safe condition in view of all the
circumstances, including the likelihood of injury to others, the seriousness of the injury,
and the burden on the respective parties of avoiding the risk.”
4.

Elements of Negligence. As in any negligence case, a plaintiff in a slip-

and-fall action “has the burden of showing that the defendant owed [the plaintiff] a
duty, that the defendant breached that duty, that [the plaintiff] was injured, and that
the breach of duty was the proximate cause of [the plaintiff’s] injury.” Edenshaw v.
Safeway, Inc., 186 P.3d 568, 571 (Alaska 2008).
5.

The Property Manager is Responsible for “Inspection Tent”

Maintenance: The United States is the relevant landowner and is responsible for
ensuring that the areas where drivers are directed to walk under the “Inspection Tent”

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were, at all times, maintained in a “reasonably safe condition in view of all the
circumstances.”
6.

Notice. The Alaska Supreme Court has held that actual or constructive

notice of a hazardous condition is one factor that a factfinder may consider in
determining reasonableness; it is not an element of a prima facie case in a slip-andfall action. Edenshaw, 186 P.3d at 579-571.
7.

United States/Chenega Legal Fault Allocation: Alaska Stat. §

09.17.080 and Evans v. State, 56 P.3d 1046, 1059 (Alaska 2002), authorize this Court
to apportion fault to all parties and non-parties “released from liability.” Chenega was
released from liability by Morrison. This Court thus must determine liability for: (a) the
United States; (b) Morrison; and (c) Chenega. The Court must determine the
“equitable share of damages and enter judgment in accordance with [Chenega’s]
percentage of fault.”
8.

Contractual Fault Allocation to Chenega: The United States/Chenega

Inspection Contract does not specifically allocate responsibility for the safety of drivers
walking on the surface of the Inspection Tent to Chenega beyond generally requiring
inspections to be done “safely.” Based on the evidence presented at trial, the Court
will not allocate any fault to Chenega for Morrison’s injury.
9. Alaska Stat. § 09.17.080 Comparative Fault: Pursuant to Alaska Stat.
§ 09.17.080, the Court will not allocate fault to Morrison with respect to the cause of
the fall. But the Court does find that Morrison did not mitigate certain damages as set
forth herein.
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10. The “Inspection Tent” Area was not Reasonably Safe: Morrison
established by a preponderance of the evidence that on January 20, 2012, the United
States had the duty to maintain the area under the “Inspection Tent,” but that the area
was not so maintained at that time in view of all the circumstances.
11. Unsafe Surface was a Substantial Factor in Morrison’s Injuries: The
United States’ breach of its duty to ensure the areas under the “Inspection Tent” were
maintained in a reasonably safe condition was a substantial factor in bringing
about Morrison’s January 20, 2012, fall and injury/aggravation of his right knee.
LaMoureaux v. Totem Ocean Trailer Express, Inc., 632 P.2d 539 (Alaska 1981); Tolan
v. ERA Helicopters, Inc., 699 P.2d 1265 (Alaska 1985).
12. Mitigation: Morrison appropriately mitigated his past medical damages.
Indeed, he missed many appointments for physical therapy such that had he followed
all treatment advice his past medical damages would have been higher. But Morrison
did not appropriately mitigate his past non-economic loss and past lost wages.

A

review of the medical records indicates many skipped physical therapy appointments
and incidents in which Morrison did not wear a prescribed knee brace. The Court
also finds that if Morrison had followed all treatment advice, his future medical bills
and future non-economic losses would also have been correspondingly reduced.
Based on these findings, the Court finds that each of these damages awards should
be reduced by 15%.
13. Medical Billings: Morrison’s past medical care and billings are reasonable
and necessary, and were incurred due to the January 20, 2012, fall.
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14. Judgment for Morrison: Morrison thus is entitled to judgment in his favor,
and against the United States, as follows:
A.
B.
C.
D.
E.
F.

Past Medical Bills:
Past Lost Wages (less 15%):
Past Non-Economic Losses (less 15%)
Future Medical Bills (less 15%):
Future Lost Wages:
Future Non-Economic Losses (less 15%):

$326,089
$136,000
$50,809
$156,060
$0
$59,500

Total:

$728,458

DATED this 22nd day of February, 2019, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

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