Alaska

Alaska

 

 

 

Caution: Alaska is the only state where the prevailing party can recover atty fees [Alaska Court Rule, Rule 82]

 

Statutes of Limitations (ALASKA)

Personal Injury - 2 yrs.* [AS § 09.10.070]

Wrongful Death - 2 yrs. (after date of death) [AS § 09.55.580]

Property Damage - 2 yrs.* [AS § 09.10.070]

Contracts (Written and Oral) - 3 yrs. [AS § 09.10.053]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [AS § 45.02.725]

 

*From the time Plaintiff discovers existence of all elements essential to cause of action [John's Heating Service v. Lamb, 129 P.3d 919 (Alaska 2006)]

 

 

 

Statute of Repose (Products) (ALASKA)

 

None.

 

 

 

 

 

Admissibility of Expert Testimony (ALASKA)

 

Daubert test adopted for expert opinions based on technical or scientific research and testing.  [Thompson v. Cooper, 290 P.3d 393, (Alaska 2012)] Daubert Test considers: (1) whether the proffered scientific theory/technique can be (and has been) empirically tested; (2) whether the theory/technique has been subject to peer review and publication; (3) whether the known or potential error rate of the theory/technique is acceptable (and whether the existence and maintenance of standards controls the technique’s operation; and (4) whether the theory/technique has attained general acceptance [Martinez-Morales v. Martens, 367 P.3d 1167 (Alaska 2016)].

 

Expert opinions based on practical experience in the relevant field is admissible when the expert witness has substantial experience in the relevant field (Daubert does not apply) [Martinez-Morales v. Martens, 367 P.3d 1167 (Alaska 2016)]

 

Causes of Action (ALASKA)

 

Strict LiabilityA manufacturer is strictly liable in tort when he places an article on the market, knowing that it is to be used without inspection for defects, and the article proves to have a defect that causes injuries.  A plaintiff satisfies his burden of proof when he proves the existence of a "defect" and that such defect was a proximate cause of his injuries [Prince v. Parachutes, Inc., 685 P.2d 83 (Alaska 1984)].

 

Negligence – The fact that the manufacturer took reasonable precautions in an attempt to design a safe product or otherwise acted as a reasonably prudent manufacturer will absolving the manufacturer of liability under a negligence theory, but will not preclude the imposition of liability under strict liability principles [Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979)].

Breach of Warranty – Alaska recognizes the standard UCC express warranty [AS § 45.02.313]; implied warranty of merchantability [AS § 45.02.314]; and implied warranty of fitness for particular purpose [AS § 45.02.315].  A seller’s warranty (express or implied) extends to a natural person who is in the family or household of the buyer or who is a guest in the buyer’s home if it is reasonable to expect that the person may use, consume, or be affected by the goods and who is injured in person by breach of the warranty [AS § 45.02.318].  However, breach of warranty claims have become virtually obsolete, and are only useful in cases involving only economic harm.  Alaska Supreme Court stated that the the purpose of imposing strict liability is to insure that the cost of injuries resulting from defective products are borne by Manufacturers, and “sales warranties serve this purpose fitfully at best” [Clary v. Fifth Ave. Chrysler Ctr., 454 P.2d 244 (Alaska 1969)].

 

 

Definition of “Defect” (ALASKA)

 

A product is defective if the use of the product in a manner that is reasonably foreseeable by the defendant involves a substantial danger that would not be readily recognized by the ordinary user of the product and the manufacturer fails to give adequate warning of such danger.  In addition to a product being defective because of a flawed construction or because it was improperly designed, a product may be defective because of misinformation or inadequate information about risks involved in using the product or about minimizing or avoiding harm from such risks [Prince v. Parachutes, Inc., 685 P.2d 83 (Alaska 1984)].

Also, see discussion below re: design defects.

 

 

Liability of Sellers (ALASKA)

 

Strict liability applies to sellers, manufacturers, wholesale, retail dealers, and distributors [Burnett v. Covell, 191 P.3d 985 (Alaska 2008)].  Strict liability also applies to bailors and lessors [Bachner v. Pearson, 479 P.2d 319 (Alaska 1970)].  For liability to apply, such persons must be engaged in the business of selling such a product.

 

Defenses (ALASKA)

 

Comparative Negligence – Alaska follows pure comparative negligence (Plaintiff can recover even if 99% at fault) [AS §§ 09.17.060; 09.17.080].  Defense of comparative negligence in strict liability cases applied to situations where Plaintiff uses the product with knowledge of the defective condition, and also extends to cases where Plaintiff misuses the product [GMC v. Farnsworth, 965 P.2d 1209 (Alaska 1998)].

 

Assumption of Risk and Product Misuse – Incorporated in the comparative negligence analysis [GMC v. Farnsworth, 965 P.2d 1209 (Alaska 1998)].

Product Alteration/Modification – A substantial change in the product after it leaves the manufacturer's hands will ordinarily defeat a claim based on strict tort liability [Hiller v. Kawasaki Motors Corp., 671 P.2d 369 (Alaska 1983)].

 

Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (ALASKA)

 

Where injury involves only economic loss, Plaintiff has merely lost the benefit of his bargain and his recovery must rest on warranty, not strict liability in tort [Northern Power & Engineering Corp. v. Caterpillar Tractor Co., 623 P.2d 324 (Alaska 1981)]  Cause of action in tort does not extend to purely economic harm sustained by one not in privity with supplier of a defective product [Smith v. Tyonek Timber, Inc., 680 P.2d 1148 (Alaska 1984)].

 

Two potential exceptions: (1) Plaintiffs may recover for purely economic harm where Plaintiffs can show that Defendant knew (or should have foreseen) that particular Plaintiffs (or identifiable class of Plaintiffs) were at risk and that ascertainable economic damages would ensue from the conduct [Mattingly v. Sheldon Jackson, 743 P.2d 356 (Alaska 1987)]; (2) when a defective product creates situation potentially dangerous to persons or other property, and loss occurs as a result of that danger, strict liability in tort is appropriate theory of recovery, even though damage is confined to the product itself [Northern Power & Engineering Corp. v. Caterpillar Tractor Co., 623 P.2d 324 (Alaska 1981)].

 

 

 

 

Malfuntion Theory (Using Circumstantial Evidence to Prove Defect) (ALASKA)

 

No law available.

 

 

Design Defects (ALASKA)

 

Products may be defective for improper design (conforming to the design intended by the manufacturer but producing unacceptable consequences).  A trial judge may properly instruct the jury that a product is defective in design if: (1) Plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner; or (2) Plaintiff proves that the product’s design proximately caused his injury and Defendant fails to prove that on balance the benefits of the challenged design outweighed the risk of danger inherent in such design [Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979)]. 

 

Defendant may avoid liability by proving (by a preponderance of the evidence) that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.  This requires the fact-finder to consider and compare a number of competing factors, including but not limited to: (1) the gravity of the danger posed by the challenged design; (2) the likelihood that such danger would occur; (3) the mechanical feasibility of a safer alternative design; (4) the financial cost of an improved design; and (5) the adverse consequences to the product and to the consumer that would result from an alternative design [Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979)].

 

“State of the art” refers to customary practice in the industry.  Evidence of conformity to industry-wide standards is not always conclusive in negligence actions.  “State of the art” is strictly speaking not a defense, it may be considered in determining whether a product is defective [Sturm, Ruger & Co. v. Day, 594 P.2d 38 (Alaska 1979)].

 

Failure to Warn (ALASKA)

 

A product may be defective because of misinformation or inadequate information about risks involved in using the product or about minimizing or avoiding harm from such risks.  In such a case, a product can be defective when placed in Plaintiff’s hands without first giving an adequate warning concerning the manner in which to safely use the product.  In the context of strict liability, a product is defective if the use of the product in a manner that is reasonably foreseeable by Defendant involves a substantial danger that would not be readily recognized by the ordinary user of the product and Manufacturer fails to give adequate warning of such danger [Prince v. Parachutes, Inc., 685 P.2d 83 (Alaska 1984)].

 

In most cases, for a warning to be adequate, it should: (1) clearly indicate the scope of the risk or danger posed by the product; (2) reasonably communicate the extent or seriousness of harm that could result from the risk or danger; and (3) be conveyed in such a manner as to alert the reasonably prudent person [Shanks v. Upjohn Co., 835 P.2d 1189 (Alaska 1992)].

 

Heeding presumption has not be adopted (or explicitly rejected).

 

 

 

 

 

Independent Cause of Action for Spoliation (ALASKA)

 

Alaska has recognized a cause of action for intentional spoliation against a first party and a third party [Hazen v. Municipality of Anchorage, 718 P.2d 456 (Ala. 1986); Nichols v. State Farm Fire and Cas. Co., 6 P.3d 300 (Ala. 2000)].  It does not appear that a cause of action for negligent spoliation has been recognized.