1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ALASKA
9 DARLA WARNKE, Case No. 3:23-cv-00002-GMS
10 Plaintiff, FINDINGS OF FACT AND CONCLUSIONS OF LAW 11 v.
12 UNITED STATES OF AMERICA,
13 Defendant. 14 15 Pursuant to Fed. R. Civ. P. 52(a), the Court hereby makes its findings of fact and its 16 conclusions of law in the above case: 17 FINDINGS OF FACT 18 1. Plaintiff, Darla Warnke, has lived in Alaska her entire life. She has lived and worked 19 in Anchorage, Alaska for 25 years. As part of her job duties from 2010 to 2023, 20 Plaintiff went to the post office at 5855 Lake Otis Parkway in Anchorage twice a 21 week—on Tuesdays and over the weekend. 22 2. On Tuesday, February 11, 2020, she followed her routine, leaving her work location 23 at 4:00 PM to go to the post office. On that day, between 4:00 and 4:30 PM, Plaintiff 24 slipped on ice on the sidewalk in front of the post office’s entrance. The sidewalk 25 and parking lot, which are routinely accessed by the public, were under the control of 26 the United States Postal Service (“USPS”). 27 3. It was between twelve- and thirteen-degrees Fahrenheit, and Plaintiff noticed that the 28 parking lot was a little messy—with snow and ice and ridges of both—so she crossed 1 it very carefully. She had encountered snowy and icy conditions at this post office 2 before. Knowing that pedestrians generally need to be careful where they walk during 3 Alaska winters, Plaintiff walked slowly through the parking lot, taking small steps 4 “like a penguin.” 5 4. Once she was on the sidewalk, which was much better maintained than the parking 6 lot, Plaintiff stopped walking cautiously and did not watch her step; instead, she 7 focused on the door. After taking several steps on the sidewalk, she felt her feet 8 slipping. She fell on her bottom, landing in a seated position with her feet out in front 9 of her, pointing away from the door. Both of her wrists were fractured during the fall, 10 becoming visibly deformed and compact. (Pl.’s Ex. 2 at 7-8). 11 5. A passerby helped Plaintiff into the post office, found her a place to sit, and called 12 Plaintiff’s sister, Denise Barengo, on Plaintiff’s behalf. Mrs. Barengo and her 13 husband Richard Barengo arrived at the scene fifteen or twenty minutes later. Within 14 forty-five minutes of the accident and just before driving Plaintiff to the hospital, Mr. 15 Barengo took a picture of the area where Plaintiff fell. (Pl.’s Ex. 1). 16 6. The photograph shows a sidewalk that leads to the post office’s front door, bordering 17 the parking lot. (Id.). Towards the bottom of the photograph, a patch of ice is visible 18 on the largest section of concrete. (Id.). Around this patch, residue of ice melt product 19 appears to show that the ice has considerably retreated from its largest extent—near 20 the edge of the sidewalk—down to its extent at the time of Plaintiff’s fall—where the 21 residue aligns directly and closely with the remaining ice. (Id.). Moving upwards in 22 the photograph, the ice narrows slightly into a path of patchy ice, trailing along the 23 sidewalk’s middle seam before angling left towards the post office’s front door. (Id.). 24 There are appreciable areas of dry concrete to either side. (Id.). 25 7. The government offered testimony that the dark spots on the sidewalk were water or 26 damp concrete, not ice. But the great weight of the evidence demonstrates that the 27 dark patches in the photograph are ice and that there is an appreciable amount of it on 28 the sidewalk where Plaintiff fell. In light of the appearance of the photograph; the 1 freezing temperature at the time of the fall and throughout the day before; the 2 testimony of the Plaintiff, her sister and brother-in-law, and the government’s civil 3 engineering expert; the post office winter maintenance log; and ice melt residue, 4 which shows where the ice had previously receded, the Court finds that there was ice 5 on the sidewalk. (Pl.’s Ex. 1; Def.’s Ex. H at 15-17; Pl.’s Ex. 9 at 1). 6 8. This same evidence—particularly the weather reports and maintenance log—tends to 7 demonstrate that the ice had been on the sidewalk for some time. 8 9. As to the weather reports, there was trace precipitation at Elmendorf Air Force Base1 9 in Anchorage on the second, fourth, and fifth of February 2020. (Def.’s Ex. H at 23). 10 The records further indicated 0.08 of an inch of both rain and snow on the eighth, 11 trace precipitation on the ninth, and no precipitation on the tenth or eleventh. (Id. at 12 7, 23). On the ninth, the high temperature was forty-one degrees with a low of thirty- 13 three degrees. (Id. at 15-16). On the tenth, the average temperature was twenty-three 14 degrees—with a high of thirty-four degrees and a low of thirteen degrees. (Id. at 16- 15 17). The above freezing temperatures on the tenth lasted less than two hours before 16 dropping into freezing temperatures, which only grew colder throughout the day. 17 (Id.). Although the high temperatures on the ninth did not melt all the snow 18 surrounding the sidewalk, presumably there was at least some melting. Given the 19 freezing temperatures on the tenth—even when factoring in the period of several 20 hours that it takes for the concrete’s mass to adjust to match ambient temperatures— 21 there was likely refreezing. On the eleventh, the day of Plaintiff’s accident, the 22 temperature never rose above sixteen degrees. (Id. at 17). What refroze earlier 23 remained frozen all day on the eleventh. 24 10. As to the maintenance logs, the building’s custodian—who has since passed away— 25 last recorded winter maintenance on any part of the postal property on February 6, 26 five days before the accident. (Pl.’s Ex. 9 at 1). The custodian shoveled the sidewalks 27 on the fourth, but not on the second or fifth. (Id.). On February 6, he did not lay
28 1 The government’s civil engineering expert testified that Elmendorf is located approximately five miles north of the post office where Plaintiff was injured. 1 down ice melt product, but he did use the snow shovel and the snowblower on the 2 walks and loading dock. (Id.). His successor, Julie Spradling, who began working at 3 the post office after Plaintiff’s accident, described the custodian as “meticulous” and 4 noted that it was important for the sidewalk to be safe for those coming in and out of 5 the building. She further testified that she would have added more ice melt product 6 to the area, particularly if it felt slick. Regardless, she was not present during the time 7 in question and has no knowledge of what maintenance her predecessor performed or 8 of what he did with respect to the log. There is, nevertheless, no record of any winter 9 maintenance for the five days leading up to Plaintiff’s injury. (Id.). 10 11. Though there is little evidence of maintenance, Mark Nordstrom, the government’s 11 expert in civil engineering, testified that the sidewalk was in a reasonable condition 12 and that USPS complied with industry standards for best practices. He did testify that 13 there appeared to be some ice in the photograph but stated that it was not an 14 unreasonable accumulation. Nordstrom noted the ice melt residue on the sidewalk 15 but testified that he could not say what type of ice melt product it was, when it was 16 applied, how long it remained active, or whether the dark spots were ice or water; 17 further, he acknowledged that if there was ice, any ice melt product previously applied 18 was no longer effective. 19 12. Nevertheless, although the Court finds that there was patchy ice down the middle of 20 the sidewalk area, it also finds that the ice and its extent were apparent in the daylight 21 at the time of Plaintiff’s accident. 22 13. Plaintiff indicates that she slipped on the smaller area of patchy ice aligned with the 23 back tire of the car that appears in the upper half of the photograph. (Pl.’s Ex. 1). 24 14. Plaintiff was wearing flat, slip-on, tennis shoes, which did not have good traction and 25 were unsuitable for walking in slippery conditions. (Pl.’s Ex. 2 at 7). Plaintiff’s 26 brother-in-law, Mr. Barengo, testified that he does not understand why people wear 27 tennis shoes—like Plaintiff’s—during an Alaska winter. 28 15. Plaintiff acknowledges a dry path of two-and-a-half feet on the right side of the 1 sidewalk and another dry portion of somewhat less than two feet on the left side of 2 the sidewalk. She acknowledges that for February in Alaska the sidewalk was “pretty 3 clear” and that she could have walked on the clear path to the right and arrived safely 4 at the post office if she had been paying attention. Further, each of the Barengos 5 testified that they would have walked on the clear path to the right. Indeed, Mrs. 6 Barengo acknowledges that an average Alaskan would notice the patches of ice and 7 easily navigate around them. 8 16. Once Plaintiff was in the emergency room, she began to feel acute pain in both of her 9 wrists and, ultimately, underwent surgery for both wrists on February 12, 2020. A 10 surgeon placed a pin into the back of each of Plaintiff’s hands and another pin halfway 11 along each forearm, before attaching external fixator frames to the portion of the pins 12 which protruded from Plaintiff’s skin. (Pl.’s Ex. 2 at 8; Pl.’s Ex. 3 at 2). The surgeon 13 described this surgery to Plaintiff as providing the highest likelihood of optimal 14 healing, with the fixators stabilizing the injury and preventing movement. The 15 placement of the pins left permanent scars on two places on both of her arms. (Pl.’s 16 Ex. 2 at 2-5, 8). 17 17. Plaintiff wore the fixators for six weeks. For the first couple of weeks, Plaintiff’s use 18 of her arms was strictly limited, such that she could not shower. Instead, one of her 19 sisters or her niece had to help her take baths with plastic bags over her arms to keep 20 them dry. Even after this two-week period, Plaintiff could not shower on her own 21 and remained dependent on her family for every aspect of personal care. 22 18. Although the fixators were not uncomfortable or painful, they did hinder Plaintiff’s 23 life. Though she was able to move and encouraged to use her fingers, she could not 24 drive, lift more than a couple of pounds, or do any of her hobbies—crafting, 25 crocheting, knitting, quilting, and gardening. She went back to work quickly after her 26 injury as the fixators allowed her to type, and she makes no claim for lost wages. 27 19. After six weeks, Dr. Graham Milam, an orthopedic surgeon specializing in hand 28 surgery, removed Plaintiff’s pins and external fixators. (Pl.’s Ex. 4). Upon removing 1 the fixators, Dr. Milam applied bandages, which Plaintiff wore for two weeks, and 2 then fit her for wrist braces, which she wore for six weeks. Once Plaintiff had the 3 braces removed, she was able to shower by herself and began weekly occupational 4 therapy to improve her range of motion and strength. The therapy helped with her 5 range of motion in her wrists, but she did not regain strength in her fingers. 6 20. Her fractures healed well, within the usual timeframe for this type of injury, and most 7 of Plaintiff’s pain from the fractures ceased within the calendar year. The only pain 8 that Plaintiff reported during 2020 were periodic “ghost pains” along the side of her 9 forearm opposite of where the fixators had been installed. 10 21. Sometime near the end of 2020, however, Plaintiff began to feel stiffness in her hands, 11 which has since progressed. (See Pl.’s Ex. 6). Dr. Milam diagnosed Plaintiff’s hands 12 with stenosing tenosynovitis, known as “trigger finger syndrome.” (Pl.’s Ex. 5 at 1, 13 2). This common condition is caused by inflammation within the tendon sheath along 14 the palm so that the fingers become stuck in a bent position. 15 22. While testifying, Dr. Milam expressed no opinion as to whether Plaintiff’s wrist 16 fractures caused her trigger finger. He stated that trigger finger is not a typical 17 complication of wrist fractures; most patients who have wrist surgery neither develop 18 trigger finger nor have persistent pain or disfunction after their injuries, aside from 19 joint stiffness. The government’s independent medical expert, Dr. Donald Schroeder, 20 however, found that Plaintiff’s severe wrist fractures were the substantial cause of her 21 trigger finger, regardless of the incidence of the condition in similarly situated 22 patients. (Def.’s Ex. L at 5-6). 23 23. Since diagnosing Plaintiff, Dr. Milam has used conservative and surgical treatments 24 for her hands. Conservative treatments included rest, oral anti-inflammatory 25 medication, and a course of corticosteroid injections, each of which provided only 26 temporary relief. On March 4, 2022, Dr. Milam performed a “trigger finger release,” 27 which involves small incisions through the palm to create more space for the tendons 28 to move. (Pl.’s Ex. 5 at 1, 2). The surgery helped with Plaintiff’s mechanical, 1 objective symptoms, but did not resolve her subjective symptoms. Dr. Milam has 2 since administered additional steroid injections, which each provided some relief; this 3 course of treatment is not sustainable, however, because continued use risks tendon 4 rupture. 5 24. Because Plaintiff’s symptoms have persisted despite the usual treatments, Plaintiff’s 6 daily activities continue to be affected by her trigger finger. At work, Plaintiff is less 7 efficient; she or a co-worker must double- and triple-check her data entry. At home, 8 Plaintiff has not been able to enjoy her hobbies, which used to occupy hours of her 9 time. Although she returned to gardening as soon as she was able, she cannot maintain 10 her garden to her usual standards. While she used to be a prolific and elaborate quilter, 11 she has only made one, simple quilt since her injury. Crocheting and knitting remain 12 impossible. During the holiday season, Plaintiff has been unable to uphold her family 13 traditions, such as hosting Thanksgiving and creating intricate Christmas decorations. 14 25. As for any future treatments, Dr. Milam indicated that most cases of trigger finger 15 involving recurrent episodes of significant swelling are treated with rest and 16 adaptation or accommodation of the patient’s lifestyle to the limitation imposed by 17 their condition. While there is a reasonable, surgical treatment option for Plaintiff’s 18 trigger finger—a resection of one of the tendons that runs along the forearm and into 19 the palm—Dr. Milam could not say that the procedure is medically necessary or if it 20 would even improve Plaintiff’s quality of life. He noted that the surgery would be 21 complex, extensive, and require a long recovery. As such, he would not perform the 22 surgery without further objective medical evidence to support the need for resection, 23 including the possibility of the procedure being beneficial. Similarly, Dr. Schroeder 24 found that any additional treatment for Plaintiff’s trigger finger would be elective. 25 (Def.’s Ex. L at 3, 6). 26 26. The total amount of Plaintiff’s billed medical expenses for her wrist injury are 27 $113,993.39. (Def.’s Ex. M at 5). The total amount of Plaintiff’s billed medical 28 expenses for her trigger finger treatment is $38,373.90. (Id.). In sum, the billed 1 medical expenses for Plaintiff’s relevant treatments total $152,367.83. (Def.’s Ex. M 2 at 5). Plaintiff testified, however, that a portion of her medical expenses were covered 3 by her Indian Health Services (“IHS”) benefits, through which the United States 4 provides health care services. The parties have stipulated that the amount paid by IHS 5 for Plaintiff’s wrist and trigger finger injuries is $3,524.64. Accounting for the IHS 6 payment, the available economic damages for past medical expenses are reduced to 7 $148,843.19. 8 CONCLUSIONS OF LAW 9 1. Plaintiff brings this action pursuant to the Federal Tort Claims Act (“FTCA”), 28 10 U.S.C. § 2671 et seq. The FTCA provides that Plaintiffs may recover money from 11 the United States for “personal injury or death caused by the negligent or wrongful 12 act or omission of any employee of the Government while acting within the scope of 13 his office or employment under circumstances where the United States, if a private 14 person, would be liable to the claimant.” Id. § 1346(b)(1). 15 2. Liability is determined by the law of the state where the incident occurred—in this 16 case Alaska. Id. 17 3. To recover under Alaska tort law, a plaintiff “has the burden of showing [1] that the 18 defendant owed [her] a duty, [2] that the defendant breached that duty, [3] that [she] 19 was injured, and [4] that the breach of duty was the proximate cause of [her] injury.” 20 Edenshaw v. Safeway, Inc., 186 P.3d 568, 571 (Alaska 2008). 21 A. Duty & Breach: Premises Liability Standards 22 4. The existence of duty is a question of law. Sowinski v. Walker, 198 P.3d 1134, 1154 23 (Alaska 2008). The Court must “determine whether a duty is imposed by statute, 24 regulation, . . . or existing case law.” McGrew v. Dep’t Health & Soc. Servs., 106 25 P.3d 319, 322 (Alaska 2005). In this case, Alaska’s common law of premises 26 liability—“a general rule of negligence”—applies. Id. at 569-70. 27 5. Alaska law imposes a duty on land occupiers to maintain premises “in a reasonably 28 safe condition in view of the circumstances, including the likelihood of injury to 1 others, the seriousness of the injury, and the burden of the respective parties of 2 avoiding the risk.” Burnett v. Covell, 191 P.3d 985, 990 (Alaska 2008) (citing Webb 3 v. City & Borough of Sitka, 561 P.2d 731, 733 (Alaska 1997) superseded on other 4 grounds by Alaska Stat. § 09.65.200, as recognized in Univ. of Alaska v. Shanti, 835 5 P.2d 1225, 1228 n.5 (Alaska 1992)). 6 6. Anchorage Municipal Code’s provisions on snow and ice removal may inform the 7 standard of care, but do not create a cause of action. Seville v. Holland Am. Line 8 Westours, Inc., 977 P.2d 103, 108 (Alaska 1999) (declining to recognize any 9 actionable duty to protect members of the public from snow and ice under Anchorage 10 Municipal Code § 24.80.090 or any cause of action for pedestrians injured by slipping 11 on public sidewalks); see also Burke v. Columbia Lumber Co. of Alaska, 108 F. Supp. 12 743, 744 (D. Alaska 1952) (describing a similar ordinance from Sitka, Alaska, and 13 holding that “this ordinance was not designed to g[i]ve an injured individual a right 14 of action against a property owner violating its provisions, but rather was intended to 15 assist the city in performing its municipal duties”); Anchorage Municipal Code 16 § 24.80.110 (describing penalties for violation of § 24.80.90, not including a private 17 cause of action). 18 7. The relevant portion of section 24.80.090 of the Anchorage Municipal Code reads as 19 follows: 20 A. An occupant of land . . . which is adjacent to a public sidewalk shall be responsible for . . . the removal or treatment 21 of any ice that may accumulate, form or be deposited thereon. 22 B. Between the hours of 8:00 a.m. and 6:00 p.m., it shall be unlawful for any occupant [entitled to possession or control] of 23 land . . . to fail to remove or treat any accumulation of ice from all . . . adjacent sidewalks. 24 C. For purposes of this section . . . any accumulation of ice of 25 one inch or more, or any combination thereof to a depth of two inches or more, or any accumulation of untreated ice at any 26 point on a public sidewalk . . . , shall create a rebuttable presumption that the occupant has violated this section. 27 28 Anchorage Municipal Code § 24.80.090. 1 8. The word “treat” in section 24.80.090(B) is defined as “the placement of salt, sand, 2 sawdust, cinders or similar material designed to reduce or eliminate hazards to 3 pedestrian traffic from accumulations of ice on public sidewalks.” Id. § 24.80.100. 4 The Code further states that “[t]reatment of ice shall be deemed accomplished only if 5 such treatment is sufficient to allow a reasonably prudent pedestrian to walk safely 6 over the ice.” Id. If ice does accumulate to an extent that a reasonably prudent person 7 cannot walk safely over it, there is “a rebuttable presumption that the ice has not been 8 treated for purposes of section 24.80.090.” Id. 9 9. The “precise scope” of USPS’s duty or whether breach occurred is a question of fact. 10 Guerrero ex rel. Guerrero v. Alaska Housing Fin. Corp., 6 P.3d 250, 257 (Alaska 11 2000) (citing Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199, 12 1203 (Alaska 1998)). 13 10. To establish breach, plaintiffs must allege specific facts to “show that dangerous 14 conditions existed on the property and that the property owner did not use due care to 15 guard against unreasonable risks posed by these dangerous conditions.” Burnett, 191 16 P.3d at 989. 17 B. Causation 18 11. As with breach, causation is a “[f]act-intensive inquir[y].” Guerrero, 6 P.3d at 255 19 (citation omitted). “Alaska applies a two-part test of legal causation in negligence 20 cases.” Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 841 (Alaska 2001). A 21 plaintiff must show that the defendant’s negligence was a cause in fact and a 22 proximate cause of their injury. Maddox v. River & Sea Marine, Inc., 925 P.2d 1033, 23 1039 (Alaska 1996). 24 12. Cause in fact requires “that the accident would not have happened ‘but for’ the 25 defendant’s negligence.” Id. 26 13. Proximate cause requires that “the negligent act was, more likely than not, a 27 substantial factor in bringing about the injury.” Alvey v. Pioneer Oilfeild Servs., Inc., 28 648 P.2d 599, 600 (Alaska 1982) (citing Sharp v. Fairbanks N. Star Borough, 569 1 P.2d 178, 181 (Alaska 1977)). To constitute a substantial factor, “the negligent act 2 must have been so important in bringing about the injury that a reasonable person 3 would regard it as a cause and attach responsibility to it.’” Maddox, 925 P.2d at 1039. 4 However, “even if specific actions are a substantial factor in producing injury, [t]he 5 actor’s conduct may be held not to be a legal cause of harm” if in hindsight, “it appears 6 . . . highly extraordinary that [the defendant’s negligence] should have brought about 7 the harm.” Sharp, 569 P.2d at 182 (citing Restatement (Second) of Torts § 435, cmt. 8 c (1965)). 9 14. In other words, “proximate cause requires only that the general kind of harm be 10 foreseeable.” Winschel v. Brown, 171 P.3d 142, 146 (Alaska 2007). Such 11 “foreseeability does not require an ability to predict precise actions and exact 12 injuries.” P.G. v. Dep’t of Health & Hum. Servs., 4 P.3d 326, 335 (Alaska 2000). 13 Accordingly, even where a plaintiff’s negligence contributes to their injury, “such 14 intervention is not a superseding cause” and therefore, will not cut off a defendant’s 15 liability where the defendant’s negligence “creates or increases the foreseeable risk 16 of harm.” Osborne v. Russel, 669 P.2d 550, 557 (Alaska 1983). 17 C. Comparative Fault of Plaintiff 18 15. Particularly where both the plaintiff’s and defendant’s actions were a substantial 19 factor in the plaintiff’s injury, “[t]he issue of comparative negligence [is] closely tied 20 to the issue of causation.” Gen. Motors Corp. v. Farnsworth, 965 P.2d 1209, 1222 21 (Alaska 1998). 22 16. Alaska “employ[s] the pure system of comparative negligence.” Kaatz v. State (Kaatz 23 I), 540 P.2d 1037, 1049 (Alaska 1975). Under this system, “a plaintiff, with an 24 otherwise valid right of action, is denied recovery for so much of the losses as are 25 shown to have resulted from failure on his part to use reasonable efforts to avoid or 26 prevent them.” Anchorage Indep. Sch. Dist. v. Stephens, 370 P.2d 531, 533 (Alaska 27 1962). As such, a “[d]efendant’s liability is limited by the percentage of fault 28 attributable to [the p]laintiff’s own negligence.” Bolt v. United States, 652 F. Supp. 1 2d 1010, 1022 (D. Alaska 2009). Even where the plaintiff bears the majority of the 2 fault for their injuries, Alaska law “does not bar recovery.” Alaska Stat. § 09.17.060. 3 17. When assessing a plaintiff’s negligence, Alaska courts consider whether the 4 plaintiff’s injury resulted from “avoidable consequences.” Stephens, 370 P.2d at 533. 5 In other words, a plaintiff’s recovery will be reduced where “[s]he, more than anyone 6 else, had the best chance to ensure her safety” by taking “certain steps that could have 7 prevented her injury.” Bolt, 652 F. Supp. 2d at 1023. 8 18. If a plaintiff bears some fault for their injuries, the fact finder must apportion fault 9 between the plaintiff and the defendant. Alaska Stat. § 09.17.080. “[T]he 10 apportionment of percentages [of fault] is a question of fact, not law.” State v. Kaatz 11 (Kaatz II), 572 P.2d 775, 781 (Alaska 1977); Alaska Stat. § 09.17.080. When 12 determining the percentage of fault, the Court will consider “both the nature of the 13 conduct of each person at fault, and the extent of the causal relation between the 14 conduct and the damages claimed.” Kaatz II, 572 P.2d at 782. 15 19. In Bolt, the court applied the “avoidable consequences” rule to find that a plaintiff 16 who slipped and fell in the parking lot of her military housing unit was comparatively 17 negligent and fifty percent responsible for her injuries. 652 F. Supp. 2d at 1011, 1023. 18 Photographs clearly showed that “[t]he whole parking lot was a hazardous area” with 19 ice that was “ubiquitous and unavoidable,” with “a substantial layer of ice remaining 20 on the ground . . . where [p]laintiff fell.” Id. at 1022-23. “[T]he parking lot [did] not 21 appear, on the whole,” however, “to be any more dangerous than a typical parking lot 22 . . . anywhere . . . in Alaska[] during wintertime.” Id. at 1023. The Bolt plaintiff had 23 only experienced three winters in Alaska, but “was very familiar with the area and 24 with the conditions,” and, further, “surely knew that the utmost caution must be taken 25 while walking across an icy parking lot.” Id. Although the fall would not have 26 happened without the defendant’s negligence failure to perform annual ice removal 27 at the end of winter, the plaintiff “failed to take certain steps that could have prevented 28 her injury, including walking more carefully, choosing a safer route, [and] wearing 1 better shoes.” Id. The court reduced her damages accordingly. Id. 2 D. Damages 3 20. When apportioning damages based on fault, the Court will make specific factual 4 findings as to (1) the amount of damages the plaintiff could recover if comparative 5 fault was disregarded; (2) the percentage of fault allocated to each party. Alaska Stat. 6 § 09.17.080. 7 21. The amount of damages without considering comparative fault reflects the general 8 rule in tort cases is that “the injured party is entitled to be placed as nearly as possible 9 in the position he [or she] would have occupied had it not been for the tortious 10 conduct.” Weston v. AKHappytime, LLC, 445 P.3d 1015, 1020 (Alaska 2019) 11 (quoting ERA Helicopters, Inc. v. Digicon Alaska, Inc., 518 P.2d 1057, 1059-60 12 (Alaska 1974)). 13 22. An injured plaintiff may recover both economic damages—including medical 14 expenses—and non-economic damages. Alaska Stat. § 09.17.010(a). Plaintiff has 15 the burden of “providing some reasonable basis upon which” the fact finder can 16 “estimate with a fair degree of certainty the probable loss” and make “an intelligent 17 determination of the extent of this loss.” Weston, 445 P.3d at 1021 (quoting 18 Alexander v. Dep’t of Corr., 221 P.3d 321, 324 (Alaska, 2009)). 19 1. Medical Economic Damages 20 23. A plaintiff seeking economic damages for medical expenses must “show that the 21 medical care was reasonably necessary and that it was necessary because of 22 [defendant’s] negligence.” Id. (citing Turner v. Mun. of Anchorage, 171 P.3d 180, 23 185 (Alaska 2007) and Pugliese v. Perdue, 988 P.2d 557, 580 (Alaska 1999)) 24 (footnotes omitted). 25 24. For future expenses, this includes proving, “to a reasonable probability,” that the 26 expenses will occur and the reasonable amount of such damages. Alexander, 221 27 P.3d at 325 (quoting Pluid v. B.K., 948 P.2d 981, 984 (Alaska 1997)). 28 25. Alaska applies the “reasonable value” approach to medical damages, which allows 1 “an injured party . . . to introduce the full, undiscounted medical bills into evidence at 2 trial.” Weston, 445 P.3d at 1027. While the defense cannot introduce the amounts 3 actually paid, it can (1) rebut the reasonableness of the billed amounts by cross- 4 examining the plaintiff’s witnesses or calling its own and (2) introduce evidence of 5 non-collateral payments—payments from sources related “to a wrongdoer who is 6 legally responsible for the injuries”—in order to reduce their liability. Id. at 1021; 7 Chenega Corp. v. Exxon Corp., 991 P.2d 769, 790 (Alaska 1999) (citation omitted). 8 26. In comparative negligence cases, non-collateral payments made on a no-fault basis 9 (i.e., not in anticipation of the defendant’s potential liability), are subtracted from the 10 total available damages before fault is allocated between the parties, such that “all 11 negligent parties [are] responsible for their proportionate share of the harm.” 12 Jackman v. Jewel Lake Villa One, 170 P.3d 173, 179 & n.16 (Alaska 2007). 13 2. Non-Economic Damages & Damages Cap 14 27. Alaska law allows recovery of non-economic damages associated with a personal 15 injury for “pain, suffering, inconvenience, physical impairment, disfigurement, loss 16 of enjoyment of life, loss of consortium, and other nonpecuniary damage.” Alaska 17 Stat. § 09.17.010(a). A plaintiff’s recovery for these damages, however, is limited to 18 “$400,000 or the injured person’s life expectancy in years multiplied by $8,000, 19 whichever is greater.” Id. § 09.17.010(b). 20 28. When considering non-economic damages, the “[C]ourt must . . . allocate fault before 21 deciding whether a damages cap applies; if the allocation of fault results in an award 22 below the statutory cap, the law requires no further reduction.” Kisling v. Grosz, 565 23 P.3d 226, 227 (Alaska 2025); Alaska Stat. § 09.17.080. 24 APPLICATION OF LAW TO FACT 25 A. USPS was negligent. 26 1. By a preponderance of the evidence, Plaintiff has shown that USPS was negligent, 27 meeting her burden to establish the elements of duty, breach, injury, and causation. 28 The parties do not dispute the nature or extent of Plaintiff’s injury. Nor do they 1 dispute what duty USPS owed to Plaintiff. The remaining issues of (1) breach and 2 (2) causation are discussed, in turn, below. 3 2. First, USPS breached its duty to maintain its premises in a reasonably safe condition. 4 As discussed above, the Court finds that there was ice on the sidewalk when Plaintiff 5 fell. It is foreseeable that any injury resulting from such a fall would be severe. In 6 contrast, in view of all the circumstances—including a lack of winter maintenance 7 and Anchorage’s weather in the days surrounding Plaintiff’s fall—USPS’s burden to 8 make the sidewalk reasonably safe by effectively treating the ice was low. 9 3. As to the lack of effective winter maintenance, there is no entry for the use of ice melt 10 product in USPS’s maintenance log for the weeks leading up to Plaintiff’s injury. 11 Even assuming that the residue on the sidewalk is evidence of a recent attempt to treat, 12 the persistence of ice shows that such treatment was ineffective, as acknowledged by 13 the government’s engineering expert. While the Anchorage Municipal Code is not 14 binding here, it does state that ice in Anchorage is presumptively considered untreated 15 if a reasonably prudent pedestrian could not walk safely over the ice. Indeed, 16 Spradling testified that she would have put down more ice melt product. 17 4. Further, given the temperatures in the days leading up to Plaintiff’s injury, it is likely 18 that the ice was present on the sidewalk from the early morning of the previous day, 19 when the temperatures dropped below freezing, to the time of Plaintiff’s fall, around 20 4:30 PM. The Anchorage Municipal Code highlights that the treatment of ice is 21 especially important between the hours of 8:00 AM and 6:00 PM, when pedestrians 22 are most likely to encounter dangerous property conditions. 23 5. The Court does not hold that every instance of a patch of ice on a sidewalk will give 24 rise to liability. Rather, the Court finds that allowing a patch of ice to persist on the 25 sidewalk amounts to a breach of duty when the ice exists in an area important for 26 pedestrian traffic in and out of the post office; for a period of approximately two days, 27 including during the post office’s business hours; under weather conditions that were 28 conducive to maintenance, with no additional accumulation of snow or ice; and when 1 treatment was attempted but ineffective so that the sidewalk remained slick. 2 6. As the parties have acknowledged, ice is a fact of life in Alaska. Though the mere 3 presence of ice does not necessarily amount to breach during an Alaska winter, USPS 4 had ample opportunity to address the risk posed by the ice and should have removed 5 it or treated it to render the remaining ice reasonably safe. While it may, at times, be 6 impossible to remove or treat ice, USPS was not faced with such impossibility. 7 7. Accordingly, USPS breached its duty to Plaintiff by failing to act with due care to 8 protect her from the unreasonable risk posed by this dangerous condition. 9 8. Second, USPS’s breach was a cause in fact and a proximate cause of Plaintiff’s 10 injuries. As to actual cause, Plaintiff would not have slipped and fallen but for the 11 sidewalk’s condition, making USPS’s ineffective treatment of the ice a cause in fact 12 of Plaintiff’s wrist fractures and trigger finger. Although Dr. Milam gave no opinion 13 on whether Plaintiff’s fractures caused her trigger finger, the government’s expert, 14 Dr. Schroeder, reported that the fractures were in fact the substantial cause of the 15 condition. Given Dr. Schroeder’s opinion, the severity of Plaintiff’s wrist fractures, 16 and the association between Plaintiff’s swelling at the time of fracture and the 17 recurrent inflammation in her hands, the Court finds that USPS’s negligence was also 18 a cause in fact of Plaintiff’s trigger finger. 19 9. As to proximate cause, USPS’s ineffective treatment of the ice was a substantial factor 20 in bringing about Plaintiff’s fractures and trigger finger, such that a reasonable person 21 would regard it as a cause and a basis to attach liability. Although the likelihood of 22 injury posed by the ice was not high, the kind of harm that Plaintiff ultimately suffered 23 was foreseeable. Allowing slick ice to remain on the sidewalk, which post office 24 patrons cross over every day, poses a clear risk of a slip and fall injury. Any person 25 who slips and falls is likely to instinctively try to catch themselves, and in doing so 26 injure their hands or wrists. Injury to her hands and wrists is exactly what Plaintiff 27 suffered. 28 10. Though Plaintiff’s trigger finger is unusual, proximate cause does not require that the 1 exact injury or extent of injuries be predictable; it merely requires that the type of 2 harm be foreseeable. And in cases of severe injury, long-term complications are 3 foreseeable. USPS’s negligence was therefore a proximate cause of Plaintiff’s wrist 4 fractures and her trigger finger syndrome. 5 11. The government argues that Plaintiff’s negligence was a superseding cause of her 6 injury, cutting off USPS’s liability. However, even when a plaintiff is negligent, a 7 defendant’s negligence is still a proximate cause if it increased the risk of a 8 foreseeable harm to the plaintiff. Such is the case here. It is not highly extraordinary 9 that USPS’s failure to treat the ice on its sidewalk created a risk of harm for reasonably 10 prudent pedestrians and increased the risk of a slip and fall injury for negligent 11 pedestrians. 12 12. Because the Court finds that USPS’s ineffective winter maintenance was both the 13 cause in fact and the proximate cause of Plaintiff’s injuries, the government’s 14 arguments regarding Plaintiff’s responsibility for her fall are more properly 15 considered in the related discussion of comparative fault below. 16 13. In sum, Plaintiff has met her burden of proof as to each element of her negligence 17 claim and the Court holds that USPS was negligent. 18 B. Plaintiff bears eighty percent of the fault for her injuries. 19 14. As a preliminary matter, the Court holds that Plaintiff’s injuries resulted, in substantial 20 part, from her own fault. Accordingly, the Court must compare her negligence to that 21 of USPS to allocate fault between the parties. 22 15. First, USPS was negligent, but at the point of the accident, its negligence amounted 23 to a narrow strip of ice on a predominately clear sidewalk. There was a wide dry area 24 that provided ample walking space. Further, for an average Alaskan visiting this post 25 office, the ice that was present on the day of Plaintiff’s injury would be easily 26 observed and avoided. And in winter conditions including temperatures of twelve- to 27 thirteen-degrees, an average Alaskan would wear winter boots with traction which 28 would substantially reduce the risk of injury. 1 16. A comparison of USPS’s negligence to that of the defendant in Bolt, described above, 2 is illuminating. Where the Bolt defendant left ice covering an entire parking lot of a 3 residential building for a period of months, to the extent that hazard became 4 ubiquitous and unavoidable for the residents of that building, USPS merely left a 5 small strip of ice stand for a period of days on an otherwise dry sidewalk. In Bolt, the 6 duration and scope of the hazard and the utter lack of ice-free paths for pedestrians 7 posed a greater risk of severe injury than the patch of ice left by USPS. 8 17. Second, Plaintiff has lived in Alaska for her entire life and is familiar with Alaska 9 winters. She knows that she should wear proper winter shoes, watch where she walks, 10 and proceed carefully in winter conditions. Her conduct while walking through the 11 parking lot “like a penguin” shows that she understands the risks of injury posed by 12 winter conditions. That she neglected to consider those risks once she reached the 13 sidewalk is, itself, negligent. 14 18. As Plaintiff, her sister, and her brother-in-law each testified, Plaintiff could easily 15 have walked around the patches of ice. In fact, Plaintiff testified that if she had been 16 looking where she was walking, she would have chosen the dry path and that, in doing 17 so, would have avoided injury. 18 19. Again, comparison to Bolt is helpful. The Bolt court charged the plaintiff with 19 knowledge that she should have taken due care to navigate the icy surfaces, despite 20 the plaintiff only living in Alaska for three winters. The Bolt plaintiff was very 21 familiar with the area where she fell and could have avoided her injury by walking 22 more carefully, choosing a safer route, and wearing appropriate winter shoes. The 23 same is true for Plaintiff here, who has far more than three Alaska winters under her 24 belt and had been visiting this post office twice a week for over a decade. Further, 25 unlike the Bolt plaintiff, Plaintiff here was not forced to choose amongst a set of 26 dangerous icy paths. She needed only pay attention to where she was walking, and 27 she could easily have avoided the ice altogether. 28 20. Given the ease with which Plaintiff could have avoided the ice, and the depth of 1 Plaintiff’s knowledge of both the risks posed by Alaska winters and how one should 2 act to avoid those risks, the Court finds that Plaintiff was eighty percent at fault for 3 her injuries. USPS bears twenty percent of the fault. 4 C. Plaintiff is entitled to $119,074.55 in damages. 5 21. Under Alaska’s system of pure comparative negligence, Plaintiff is entitled to recover 6 only the portion of her damages for which USPS is responsible. Reflecting the above 7 allocation of fault, Plaintiff’s recovery will be reduced by eighty percent. 8 22. First, the Court finds that the total amount of available damages, including both 9 economic and non-economic harms, is $595,372.76. This sum reflects the position 10 that Plaintiff would have been in if not for her injuries and temporarily disregards 11 comparative negligence. 12 23. For economic damages, Plaintiff seeks only medical expenses. The government did 13 not dispute the necessity of Plaintiff’s past medical treatments and presented no 14 evidence to rebut the reasonableness of this expense; but as noted, the parties have 15 stipulated that the $3,524.64 paid by IHS is a non-collateral payment so that the 16 available economic damages for past medical expenses are reduced to $148,843.19. 17 24. In terms of future medical expenses, Plaintiff has not shown that she must undergo 18 any medically necessary treatments associated with her injuries. Plaintiff’s wrists 19 have healed well, regaining strength and a full range of motion. Further, despite 20 ongoing effects of trigger finger, any additional surgery to treat the condition would 21 be elective. Indeed, Dr. Milam noted that the best path forward for Plaintiff would 22 likely be rest and accommodation. The Court, therefore, finds no necessary future 23 medical expenses. 24 25. To reflect Plaintiff’s pain and suffering, including her loss of independence and ability 25 to participate in her favorite hobbies, the Court finds available non-economic damages 26 of $446,529.57. 27 26. Because Plaintiff bears eighty percent of the fault for her injuries, the government’s 28 liability is diminished such that she can recover only twenty percent of the available 1 damages. She can recover $29,768.64 in economic damages and $89,305.91 in non- 2 economic damages, for a total of $119,074.55. Because the adjusted non-economic 3 damages fall below the statutory cap there is no further reduction. 4 CONCLUSION 5 For the reasons stated above, the Court finds the United States liable under the 6 || FTCA for Plaintiff Darla Warnke’s injuries but only twenty percent at fault. Plaintiff bears 7|| the remaining eighty percent of the fault. The Court will enter judgment in Plaintiffs favor 8 || with total damages of $119,074.55. 9 DATED this 8" day of October, 2025. 10 G. Murray ai 12 Senior United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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