Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.gov. 

THE SUPREME COURT OF THE STATE OF ALASKA 

SANDY SULZBACH and ROB 

SULZBACH, 

Appellants, 

v. 

CITY & BOROUGH OF SITKA and 

JOHN T. FERRICK, 

Appellees. 

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) Supreme Court No. S-17853 

Superior Court No. 1SI-17-00237 CI 

O P I N I O N 

No. 7618 – September 16, 2022 

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Appeal from the Superior Court of the State of Alaska, First 

Judicial District, Sitka, The Honorable M. Jude Pate, Judge. 

Appearances: Mark Choate, Choate Law Firm LLC, Juneau, 

for Appellants. Timothy W. Bowman, Farley & Graves, 

P.C., Anchorage, for Appellee City & Borough of Sitka. No 

appearance by Appellee John T. Ferrick. 

Before: Winfree, Chief Justice, Maassen, Carney, 

Borghesan, and Henderson, Justices. 

WINFREE, Chief Justice. 

I. INTRODUCTION 

A city allowed an independent nonprofit organization to host a public event 

at a city facility. The nonprofit organization arranged for a volunteer to hang decorations 

in the facility; a decoration fell, injuring an event participant. The injured participant 

sued the city, but not the nonprofit organization, for negligence. The city brought a 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

third-party allocation of fault claim against the volunteer. The parties sought summary 

judgment, and the trial court concluded that, under federal law, the volunteer could not 

be held financially responsible for the accident and that the city could not be held 

vicariously liable for the volunteer’s actions. The remaining negligence issues were 

decided at a jury trial; the jury determined that the volunteer and the city had not been 

negligent and therefore were not liable for the accident. The event participant appeals. 

As set forth below, we affirm. 

II. FACTS AND PROCEEDINGS 

A. Facts 

Harrigan Centennial Hall is an event facility owned by the City and 

Borough of Sitka. The City allowed the Alaska Day Organization, an independent 

nonprofit entity, to host Sitka’s 2016 Alaska Day celebration at Centennial Hall without 

cost. John Ferrick volunteered with the Alaska Day Organization to help decorate 

Centennial Hall. Ferrick had previously decorated there but it since had been renovated, 

and he attended a training session with a facility employee that involved “looking at the 

ceiling and going over the stage lighting and all of the logistics in the new facility[;] . . . 

one of those items was decorating.” 

The City provided a mechanical lift that Ferrick used to hang ten cloth 

lantern decorations, approximately five-and-a-half-pounds each, from the facility’s 

ceiling. While Ferrick was hanging the lanterns, a dance group — including Sandy 

Sulzbach — rehearsed on the facility’s stage. Ferrick temporarily fastened the lanterns, 

planning to level their height before fixing them more securely, then left the facility for 

about 15 minutes. While Ferrick was gone a lantern fell, striking Sulzbach’s “head and 

upper back.” An ambulance transported Sulzbach to the hospital, where she was 

diagnosed with a concussion and released. 

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B. Proceedings 

Sulzbach and her husband sued the City, alleging its negligence caused 

them harm.1 The City then brought a third-party complaint against Ferrick, alleging his 

negligence was the “sole, direct and proximate cause” of Sulzbach’s injuries and seeking 

to apportion fault accordingly.2 Neither Sulzbach nor the City brought a claim against 

the Alaska Day Organization. 

1. Summary judgment 

Each party moved for summary judgment.3 Sulzbach argued that Ferrick 

was negligent and that the City was vicariously liable for his actions as a matter of law.4 

The City argued that it owed Sulzbach no independent duty (i.e., the City was not 

negligent) and that it was not vicariously liable for Ferrick’s negligence. Ferrick, self1 Although both Sulzbach and her husband are parties to the litigation, we 

refer to Sulzbach individually because her husband’s claim arises from her injuries. 

2 See AS 09.17.080(a) (requiring apportionment of fault and damages “[i]n 

all actions involving fault of more than one person, including third-party defendants and 

persons who have settled or otherwise been released” unless parties agree otherwise). 

3 See Alaska R. Civ. P. 56(c) (stating summary judgment is appropriate when 

“there is no genuine issue as to any material fact and . . . the moving party is entitled to 

judgment as a matter of law”). 

4 Sulzbachasserted thatshewas seeking summary judgmentonly on theduty 

and breach negligence issues, as opposed to all four elements of a negligence claim. See 

Regner v. N. Star Volunteer Fire Dep’t, Inc., 323 P.3d 16, 21 (Alaska 2014) (“[T]o prove 

[a] negligence claim[, a party] must show that: (1) the defendants owed him a duty of 

care, (2) the defendants breached this duty, (3) he was injured, and (4) his injury was the 

factual and proximate result of the defendants’ breach.”). This distinction is irrelevant 

to consideration of this appeal. 

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represented, argued that he was not negligent and that he was shielded from liability by 

the federal Volunteer Protection Act of 1997.5 

The trial court concluded that there were genuine issues of fact precluding 

summary judgment about whether the City owed Sulzbach a duty of care and whether 

Ferrick owed Sulzbach a duty of care and breached it. But the trial court concluded as 

a matter of law that the City could not be held vicariously liable for Ferrick’s negligence, 

if any, because Ferrick and the City had “no predicate contractor-contractee 

relationship.” The court reasoned that Ferrick was affiliated only with the independent 

nonprofit Alaska Day Organization and that his work did not benefit the City. The court 

also agreed with Ferrick that the Volunteer Protection Act shielded him from liability for 

ordinary negligence, but the court noted that at trial the City could allocate fault to 

“Ferrick as a person ‘otherwise released from liability’ under AS 09.17.080(a).” 

2. Trial 

The trial court’s summary judgment decision prohibited recovery from 

Ferrick and any argument that the City was vicariously liable for Ferrick’s actions; at a 

jury trial Sulzbach thus argued almost exclusively that the City was negligent. The City 

argued that it was not negligent, implying that any negligence was attributable to Ferrick. 

Ferrick testified at trial, but he did not participate at the trial as a party. 

Sulzbachprimarily testifiedabout eventsafter thelantern fell and the extent 

of her injuries. She conceded having seen Ferrick using the mechanical lift, but she said 

that she did not think the lanterns were dangerous and that no one warned her about 

Ferrick’s activities. 

5 See 42 U.S.C. § 14503(a) (“Except as provided . . . , no volunteer of a 

nonprofit organization . . . shall be liable for harm caused by an act or omission of the 

volunteer on behalf of the organization [in given conditions] . . . .”). 

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Ferrick testified about his volunteer relationship with the Alaska Day 

Organization and about hanging the decorations; he said that he had hung decorations 

at Centennial Hall several times, although not since the facility renovation, and that his 

wife usually helped him. Ferrick said he initially hung the lanterns using a temporary 

fastening system so that he could more easily level their height before securing them. 

Ferrick asserted that the temporary placement of the lanterns “was secure[] under normal 

circumstances,” but he “speculat[ed]” that a strong wind may have dislodged one. 

Ferrick also testified about the dance group. Ferrick said that the dancers 

initially were close to the stage while he was working and that they mostly stayed there, 

out of his way. Ferrick said that he never warned the dancers about being under the 

lanterns. Ferrick said that he was out of the room when the lantern fell and that it was 

only after he returned that he learned the dancers had moved under the lanterns. 

Donald Kluting, Centennial Hall’s manager, testified during both sides’ 

evidentiary presentations. The trial court initially did not allow Sulzbach to ask Kluting 

leading questions. The court later reconsidered, and it allowed leading questions during 

Sulzbach’s re-direct examination of Kluting. Kluting estimated that the bottom of the 

lanterns hung less than eight feet from the ground and that he could nearly reach them 

with an outstretched arm. He said the lanterns were “lightweight,” “collapsible,” had no 

“sharp points,” and their shape made it unlikely that all of a lantern’s mass would fall 

directly on someone’s head. Kluting testified that the lanterns probably did not present 

a “dangerous condition” and that it was “debatable” whether the decoration could hurt 

anyone. Kluting stated that he thought the risk of injury from Ferrick’s hanging method 

was within reasonable “safety margins.” Kluting said that the dancers were specifically 

told someone would be hanging decorations and “informed to stay out from underneath” 

the lanterns. He also said that some “dancers . . . told [him] that they had been warned” 

about being under the lanterns. 

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The Centennial Hall building supervisor testified that he did not know until 

Ferrick arrived that decorating would take place and had not consulted with Ferrick in 

detail about hanging the lanterns. He said that he did not remember talking to the 

dancers before the incident and that the dancers did not affirmatively “indicate [to him] 

that they knew that they should not be in the area where [Ferrick] was working.” A 

Centennial Hall employee testified generally about responding to the incident. She also 

testified that the building manager had warned the dancers not to sit near where Ferrick 

was working and that another lantern had fallen prior to the lantern that struck Sulzbach. 

One member of the dance group testified that she did not remember being 

warned about Ferrick’s activities but also that it was “pretty obvious” he was hanging 

decorations. She said that when the lantern fell she was sitting inches from Sulzbach and 

that they were 10 to 20 feet from the stage. The dancer explained that the falling lantern 

also had struck her without causing long-term injuries. A second dancer testified that 

Ferrick was working toward “the back of the room,” away from the stage, when the 

decoration fell. She said that a Centennial Hall employee had at one point told her to 

move “because they’re going to be hanging the decoration.” She said that Ferrick was 

“fine” with where she was but that after the warning the dancers moved closer to the 

stage before later moving back under the lanterns once they thought Ferrick’s work was 

complete. She said she did not perceive “any danger” sitting under the decorations. A 

third dancer testified that Centennial Hall staff told some members of the dance group 

to move because “[y]ou can’t be sitting there while [Ferrick is] hanging above you.” She 

said that dancers moved closer to the stage and away from Ferrick in response to the 

warning but that they moved back under the lanterns once they believed Ferrick’s work 

was done. 

The jury decided neither Ferrick nor the City was negligent. 

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3. Motions for new trial 

Sulzbach sought a new trial.6 Sulzbach argued that the jury verdict finding 

Ferrick not negligent was against the clear weight of the evidence.7 She also argued that 

the trial court made “a fundamental evidentiary error” by initially not allowing her to ask 

leading questions of Kluting, an adverse witness. 

The trial court ruled that sufficient evidence supported the jury finding that 

Ferrick was not negligent. The court observed that the decorations were light and 

collapsibleandthat“it wasextremely unlikely”adecoration’s fullfive-and-a-half-pound 

mass “would concentrate on a single point[,] . . . substantially reducing [its] impact.” 

The court noted Kluting’s and Ferrick’s testimony “that they did not believe the manner 

in which the decorations were hung posed any real risk” and “that the [d]ancers had been 

repeatedly told to not sit beneath the decorations while Ferrick was working.” 

Acknowledging “the jury heard conflicting evidence on the question of Ferrick’s 

negligence,” the court ultimately concluded ample evidence supported the jury’s verdict 

that temporarily securing the decorations “was reasonable under the circumstances.” 

The trial court also concluded that its initial decision to not allow Sulzbach 

to ask Kluting leading questions was not grounds for a new trial. The court originally 

had prohibited Sulzbach from asking Kluting leading questions during direct 

examination. During a break in Kluting’s cross-examination the court acknowledged 

6 See Alaska R. Civ. P. 59 (allowing new trial “in the interest of justice”). 

7 See Hogg v. Raven Contractors, Inc., 134 P.3d 349, 352 (Alaska 2006) 

(“[A] trial court may set aside a verdict and order a new trial in the interest of justice if 

the verdict is against the weight of the evidence. . . . [T]he court must use its discretion 

andindependently weigh the evidence.”(quoting Kava v. Am. Honda Motor Co., 48 P.3d 

1170, 1176 (Alaska 2002) (footnotes omitted))). As we later discuss, Sulzbach did not 

request a new trial on grounds that the verdict in the City’s favor was against the clear 

weight of the evidence (as she contends on appeal). 

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that it should have allowed Sulzbach to ask leading questions because Kluting was an 

adverse witness by virtue of his employment with the City.8 The court then allowed 

Sulzbach to ask leading questions during re-direct examination. The court concluded 

that any prejudice to Sulzbach was “minimal” because she had “sufficient opportunities 

to elicit testimony” and she could not “point to any favorable information that [she was] 

unable to elicit.” 

The trial court denied Sulzbach’s requests for a new trial. 

4. Appeal 

Sulzbach appeals, contending that the trial court erred by ruling that the 

City could not be held vicariously liable for Ferrick’s negligence, if any, and by not 

granting her summary judgment motionon Ferrick’s negligence. Sulzbachalsocontends 

the trial court abused its discretion by not granting a new trial, renewing her arguments 

that: (1) the trial court prejudiced her by initially refusing to allow her to ask Kluting 

leading questions and (2) the jury’s verdict in favor of Ferrick was against the clear 

weight of the evidence. Sulzbach also adds a new claim, arguing that the jury erred by 

deciding, against the clear weight of the evidence, that the City was not negligent. 

III. STANDARD OF REVIEW 

“We review a grant of summary judgment de novo, ‘affirming if the record 

presents no genuine issue of material fact and if the movant is entitled to judgment as a 

8 Alaska R. Evid. 611(c) (“On direct examination, leading questions should 

not be allowed except . . . when the witness is hostile, an adverse party, or identified with 

an adverse party . . . .”). 

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matter of law.’ ”9 Denial of summary judgment based on the existence of a genuine issue 

of material fact usually is unreviewable following a trial on the merits.10 

We review the decision denying a new trial for abuse of discretion.11 When 

the trial court refuses to grant a new trial because a jury verdict is not against the weight 

of the evidence, we view the evidence in the light most favorable to the non-moving 

party and “will affirm [the denial] if there is an evidentiary basis for the jury’s 

decision.”12 We “will . . . reverse a decision to deny a new trial [only] ‘if the evidence 

supporting the verdict was so completely lacking or slight and unconvincing as to make 

the verdict plainly unreasonable and unjust.’ ”13 

IV.	 DISCUSSION 

A.	 The Trial Court Did Not Err By Granting The City Partial Summary 

Judgment On The Ground That It Could Not Be Held Vicariously 

Liable For Ferrick’s Actions.14 

9 Kelly v. Municipality of Anchorage

(quoting Beegan v. State, Dep’t of Transp. &Pub. Facilities, 195 P.3d 134, 138 (Alaska 

2008)). 

10 Larson v. Benediktsson, 152 P.3d 1159, 1169 (Alaska 2007). 

11 Kava, 48 P.3d at 1173. 

12 Hogg, 134 P.3d at 352 (quoting Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 

2001)). 

13 Id. (quoting Grant v. Stoyer, 10 P.3d 594, 596 (Alaska 2000)). 

14 The City contends this argument is moot because the jury found Ferrick 

, 270 P.3d 801, 803 (Alaska 2012) 

was not negligent. See Ulmer v. Alaska Rest. & Beverage Ass’n, 33 P.3d 773, 776 

(Alaska 2001) (noting that we will “refrain from deciding questions where the facts have 

rendered the legal issues moot” (quoting O’Callaghan v. State, 920 P.2d 1387, 1388 

(Alaska 1996) (internal quotation marks omitted))). According to the City, even if it 

were vicariously liable for Ferrick’s actions, he committed no tort. We have disregarded 

(continued...) 

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Principal-agent relationships can give rise to vicarious liability,15 and two 

types of potential agency relationships are relevant to this case: servants and 

independent contractors.16 “The existence . . . of a master-servant relationship is 

ordinarily a jury question” but may be decided by a court if “the inference is clear that 

there is, or is not, a master and servant relation.”17 We have outlined ten factors that 

14 (...continued) 

as “irrelevant” vicarious liability claims after a jury found an alleged employee not 

negligent, but we decline to do so in this case. See, e.g., Baker v. Werner, 654 P.2d 263, 

267 n.6 (Alaska 1982) (“Given the finding that neither the doctor nor the hospital was 

negligent, any theory of vicarious liability is irrelevant.”). 

Sulzbach contends the trial likely would have been litigated differently had 

the trial court not initially determined the City could not be vicariously liable. The court 

simultaneously decided three things: (1) the City could not be vicariously liable; 

(2) Ferrick could not be liable for his own negligence; and (3) the City potentially could 

apportion fault to Ferrick under AS 09.17.080(a). Sulzbach argues that not being able 

to recover from Ferrick put her in the uncomfortable position of affirmatively avoiding 

any suggestion he was negligent, likely her strongestargument,and that this trial strategy 

might have influenced the jury to Sulzbach’s detriment. We thus consider the issue 

before considering the jury’s determination that Ferrick was not negligent. 

15 See Powell v. Tanner, 59 P.3d 246, 248-250, 252 n.26 (Alaska 2002). 

16 “A servant is a person employed to perform services in the affairs of 

another and who with respect to the physical conduct in the performance of the services 

is subject to the other’s control or right to control.” Id. at 249 (quoting RESTATEMENT 

(SECOND) OF AGENCY § 220 (AM. L. INST. 1958)). “An independent contractor is ‘any 

person who does work for another under conditions which are not sufficient to make him 

a servant of the other.’ ” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 409, cmt. a 

(AM. L. INST. 1965)). 

17 Sterud v. Chugach Elec. Ass’n, 640 P.2d 823, 826 (Alaska 1982) (quoting 

RESTATEMENT (SECOND) OF AGENCY § 220, cmt. c to subsection (1) (AM. L. INST. 

1958)). 

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courts may consider when determining whether someone is an independent contractor;18 

a principal’s control over the manner of an agent’s work is the most important factor.19 

A principal usually is vicariously liable for a servant’s tortious activity20 but not an 

independent contractor’s.21 A principal may, however, be vicariously liable for an 

independent contractor’s tort if the principal “entrusts to an independent contractor 

construction, repair, or other work on the land.”22 

Sulzbach contends that the City is vicariously liable for Ferrick’s activity 

because: (1) Ferrick and the City formed a master-servant relationship and (2) Ferrick 

was an independent contractor on the City’s behalf.23 

18 Id. at 826 & n.6 (adopting factors listed in Restatement). 

19 Anderson v. PPCT Mgmt. Sys., Inc., 145 P.3d 503, 507-08 (Alaska 2006). 

20 Kastner v. Toombs, 611 P.2d 62, 63 (Alaska 1980) (“Under the doctrine of 

respondeat superior a master is liable for the torts of his servants committed while acting 

in the scope of their employment.”). 

21 See Patton v. Spa Lady, Inc., 772 P.2d 1082, 1083 (Alaska 1989) (“The 

general common-law rule . . . is that an employer is not vicariously liable for the torts of 

its independent contractor.”). 

22 See id. at 1083-84 (quoting RESTATEMENT (SECOND) OF TORTS § 422 (AM. 

L. INST. 1965)). 

23 Sulzbach bases her arguments on the Restatement (Second) of Agency 

(Am. L. Inst. 1958) and Restatement (Second) of Torts (Am. L. Inst. 1965). Sulzbach 

does not ask us to apply later versions of the Restatements, but we see nothing that would 

change our result or reasoning. The Restatement (Third) of Agency explains that the 

authors moved away from the term “independent contractor” because it does not 

acknowledge that an independent contractor may nevertheless be an agent. § 1.01, cmt. c 

(AM.L.INST.2006). It eschews the term in favor of making a distinction between agents 

who are not employees and “nonagent service providers.” Id. The Restatement (Third) 

of Torts explains that thevicarious liability rules for those hiring independent contractors 

(continued...) 

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1. Ferrick was not the City’s servant. 

Master-servant relationships often involve formal contracts or agreements. 

But “[o]ne who volunteers services without an agreement for or expectation of reward 

may be a servant of the one accepting such services.”24 Sulzbach concedes that Ferrick 

and the City had “no contract or direct agreement.” She instead argues that Ferrick was 

the City’s servant because he volunteered his services and the City accepted them. 

We have suggested that a predicate to accepting work is that “the [actual] 

purpose of the service” must be to benefit the principal.25 But Ferrick’s actual purpose 

was not to benefit the City; Ferrick worked exclusively at the direction of the Alaska Day 

Organization to fulfill its — not the City’s — goals. Had Ferrick not volunteered to 

decorate, the Alaska Day Organization, not the City, presumably would have found 

another volunteer. Alaska Day celebration ticket sale proceeds went directly to the 

Alaska Day Organization. The City collected no rent fromthe Alaska Day Organization. 

The only party receiving a direct material benefit from Ferrick’s work was the Alaska 

Day Organization. 

23 (...continued) 

are “consistent with” the earlier version. § 57, cmt. a (AM. L. INST. 2012). We have not 

been asked to adopt new terminology and do not do so here. 

24 RESTATEMENT (SECOND)OF AGENCY § 225 (AM.L.INST.1958); Anderson, 

145 P.3d at 508 n.8 (citing § 225 in stating that “gratuitous acts may sometimes create 

a master-servant relationship”). 

25 Anderson, 145 P.3d at 508 n.8. In Anderson we quoted an example from 

the Restatement (Second) of Agency to make this point: “[I]f a car is stalled in traffic 

and another driver gets out . . . to assist in pushing the car to the curb, such driver is 

presumably not a servant of the owner of the first car if [the] purpose is to remove an 

obstruction to [the driver’s] own progress down the street.” Id. (quoting RESTATEMENT 

(SECOND) OF AGENCY § 225, cmt. b (AM. L. INST. 1958)). 

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Moreover, the City did not control the“physical details as to the manner of” 

Ferrick’s work.26 City staff trained Ferrick about proper hanging methods in the 

renovated facility, gave him permission to be at Centennial Hall, and had the ability to 

stop him from working, but the City did not tell Ferrick which decorations to hang, when 

to hang them, or how to arrange them. That the alleged principal “has merely a general 

right to order the work stopped or resumed” does not create a master-servant 

relationship.27 Neither Ferrick nor the relevant City employees appear to have believed 

they were creating a master-servant relationship, and Ferrick affirmatively stated that he 

was volunteering with the Alaska Day Organization. To the extent the City exercised 

minimal control over Ferrick, it was general and only incidental to the City’s status as 

landowner. 

Sulzbach is correct that the City has a general interest in ensuring that 

Alaska Day celebrations occur and that hosting those events is part of Centennial Hall’s 

mission. But on these facts such an abstract benefit to the City is not enough to 

transform the fundamental legal nature of the City’s relationship with Ferrick. The City 

neither meaningfully controlled Ferrick’s work nor accepted his services. There was no 

master-servant relationship between Ferrick and the City. 

2.	 Ferrick was not the City’s independent contractor working on 

the land. 

Sulzbach also argues that the City would be vicariously liable for Ferrick’s 

negligence under the Restatement (Second) of Torts Section 422, providing in relevant 

part: 

26 See Powell, 59 P.3d at 252 n.26 (quoting RESTATEMENT (SECOND) OF 

AGENCY M NST

27 Id. at 249 (quoting Hammond v. Bechtel Inc., 606 P.2d 1269, 1275 (Alaska 

1980)). 

§ 250, cmt. a (A . L. I . 1958)). 

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A possessor of land who entrusts to an independent 

contractor construction, repair, or other work on the land, or 

on a building or other structure upon it, is subject to the same 

liability as though he had retained the work in his own hands 

to others on or outside of the land for physical harm caused 

to them by the unsafe condition of the structure 

(a) while the possessor has retained possession 

of the land during the progress of the work, or 

(b) after he has resumed possession of the land 

upon its completion.[28] 

Sulzbach’s argument is unpersuasive for two reasons. First, the City did 

not employ Ferrick as an independent contractor; the City had no formal relationship 

with Ferrick, who volunteered for a third party that the City allowed to use its property 

as a public service. Every illustration in the Comment to Section 422 uses either the verb 

“to employ” or “to contract with” to describe the relationship between the principal and 

an independent contractor. Although the language may not foreclose the possibility that 

a principal may be liable for a volunteer’s torts, it strongly suggests that the principal and 

agent must have some sort of formal relationship benefitting the principal. Sulzbach 

concedes that Ferrick and the City had no formal relationship, and, as discussed above, 

Ferrick’s work did not materially benefit the City. 

Second, Ferrick was not doing “construction, repair, or other work on the 

land.”29 Section 422 “applies to any work done on a building or other structure on the 

land, whether it be construction, repair, or demolition . . . [and] to work done on the land 

28 It was undisputed that the City retained possession of the land. 

29 See RESTATEMENT (SECOND) OF TORTS § 422 (AM. L. INST. 1965). 

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itself preparatory to construction, such as excavation for a foundation.”30 The 

illustrations describe installing skylights, constructing a building, and repairing a burned 

building.31 And Alaska cases considering Section 422 involved significant building 

modifications or major land improvements necessarily including a risk that may be 

difficult for a lay person to assess.32 Ferrick was not engaged in building modification 

or land improvement at all; rather, he was hanging temporary decorations in the City’s 

facility for the Alaska Day celebration. 

TheCity hadno formalrelationship withFerrick, and Ferrick was not doing 

the type of work necessary to impose vicarious liability under Section 422. The trial 

court correctly concluded that, as a matter of law, the City may not be held vicariously 

liable for Ferrick’s volunteer work.33 

B.	 Whether The Trial Court Erred By Denying Sulzbach Summary 

Judgment On Issues Relating To Ferrick’s Alleged Negligence Is 

Unreviewable. 

The trial court denied part of Sulzbach’s summary judgment motion 

because it concluded there was a genuine factual dispute whether Ferrick owed Sulzbach 

30 Id. cmt. b. 

31 Id. cmts. c-d. 

32 See, e.g., Patton v. Spa Lady, Inc., 772 P.2d 1082, 1084 (Alaska 1989) 

(installing electrical outlets); Sloan v. Atl. Richfield Co., 552 P.2d 157, 157-58, 160-61 

(Alaska 1976) (building concrete foundation); Morris v. City of Soldotna, 553 P.2d 474, 

475, 481-82 (Alaska 1976) (painting sewage treatment plant). 

33 Sulzbach also contends that public policy favors imposing vicarious 

liability. Sulzbach asserts that the City should be held liable because it had an 

opportunity to purchase insurance and was in the best position to mitigate the relevant 

risks. But Sulzbach ignores that both arguments apply at least as strongly, if not more 

so, to the Alaska Day Organization, which Sulzbach chose not to sue. And public policy 

arguments alone are not enough in this case to impose vicarious liability. 

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a duty.34 The case proceeded to a jury trial on the merits; the jury found Ferrick not 

negligent. Sulzbach contends on appeal that the trial court should have granted partial 

summary judgment by concluding, as a matter of law, that Ferrick owed Sulzbach a duty 

of care. 

We have explained that “an order denying summary judgment on factual 

grounds becomes unreviewable on appeal after a trial on the merits.”35 An exception to 

the general rule exists if “the order was entered on a legal ground that affected the 

subsequent trial.”36 But Sulzbach does not argue that the order was entered on a legal 

ground affecting the trial; the court denied summary judgment on this issue solely 

because a genuine factual dispute existed about the foreseeability of harm.37 The trial 

court’s summary judgment decision on this issue therefore is unreviewable. 

34 The existence of a tort duty may present legal or factual questions. See 

Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199, 1203 (Alaska 

1998) (“We have made statements suggesting [that the existence of a duty always 

presents a factual question]. But [the appellant] reads [our case law] too categorically. 

We have elsewhere held it appropriate to summarily adjudge disputed questions of tort 

duty when the undisputed facts support only one reasonable inference.”). 

35 Larson v. Benediktsson, 152 P.3d 1159, 1170 (Alaska 2007); see Pederson 

v. Arctic Slope Reg’l Corp., 421 P.3d 58, 67 (Alaska 2018) (“[O]ur case law is clear that 

‘post-trial review of orders denying motions for summary judgment — at least when the 

“motions are denied on the basis that there are genuine issues of material fact” ’ — is 

precluded.” (quoting Larson, 152 P.3d at 1169)); Wassillie v. State, 411 P.3d 595, 614 

(Alaska 2018) (Bolger, J., dissenting) (“[I]n a civil case, we generally decline to review 

on appeal an order that denies a defendant’s motion for summary judgment on factual 

grounds, even when the defendant argues that there were no genuine factual issues for 

trial.”). 

36 ConocoPhillips Alaska, Inc. v. Williams Alaska Petrol., Inc., 322 P.3d 114, 

133 n.66 (Alaska 2014). 

37 See Lynden Inc. v. Walker, 30 P.3d 609, 614 (Alaska 2001) (stating 

foreseeability of harm is relevant to existence of duty). 

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C. The Jury Verdicts Were Not Against The Weight Of The Evidence. 

To succeed on her negligence claims Sulzbach needed to prove: (1) the 

defendant owed her a duty; (2) the defendant breached this duty; (3) she was injured; and 

(4) the breach was the “factual and proximate” cause of the injury.38 A party “owes a 

duty of due care to ‘all persons who are foreseeably endangered by his conduct, with 

respect to all risks which make the conduct unreasonably dangerous.’ ”39 “We have 

‘made it clear that foreseeability is a broad concept and does not require that the precise 

harm in a given case be predictable.’ ”40 A par

act reasonably under the circumstances.41 

ty owing a negligence duty usually must 

38 See Regner v. N. Star Volunteer Fire Dep’t, Inc., 323 P.3d 16, 21 (Alaska 

2014). 

39 Winschel v. Brown, 171 P.3d 142, 146 (Alaska 2007); Guerrero v. Alaska 

Hous. Fin. Corp., 6 P.3d 250, 254 (Alaska 2000) (explaining that when determining 

whether duty is owed we consider following seven factors: “the foreseeability of harm 

to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of 

the connection between the defendant’s conduct and the injury suffered, the moral blame 

attached to the defendant’s conduct, the policy of preventing future harm, the extent of 

the burden to the defendant and consequences to the community of imposing a duty to 

exercise care with resulting liability for breach, and the availability, cost and prevalence 

of insurance for the risk involved.” (quoting Schumacher v. City & Borough of Yakutat, 

946 P.2d 1255, 1257 (Alaska 1997))). 

40 Winschel, 171 P.3d at 146 (quoting P.G. & G.G. v. State, Dep’t of Health 

& Human Servs., Div. of Fam. & Youth Servs., 4 P.3d 326, 332 n.11 (Alaska 2000)). 

41 HDI-Gerling Am. Ins. Co. v. Carlile Transp. Sys., Inc., 426 P.3d 881, 884 

n.1 (Alaska 2018). A relevant jury instruction, which Sulzbach has not contested, set out 

the duty concepts for the jury’s consideration: 

A property owner is negligent if the owner fails to exercise 

reasonable care to guard against unreasonable risks created 

by a dangerous condition on the property. A person can be 

(continued...) 

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The special verdict form asked two questions about Sulzbach’s claim 

against each defendant: (1) was the defendant “negligent” and (2) was the defendant’s 

“negligence a substantial factor in causing” Sulzbach’s harm. For both Ferrick and the 

City, the jury answered “no” to question one (negligence) and did not move on to 

question two (causation). Based on the special verdict wording, the jury apparently 

concluded that neither Ferrick nor the City breached a duty to Sulzbach. Sulzbach 

requested a new trial, arguing that the Ferrick verdict was against the clear weight of the 

evidence, which the trial court denied. She renews that argument on appeal, and she also 

argues that the jury verdict finding the City was not negligent was against the clear 

weight of the evidence. 

“[A] motion for new trial on the ground that the verdict is against the 

weight of the evidence is addressed to the sound discretion of the trial court.”42 “We 

‘will affirm [the denial of a new trial] if there is an evidentiary basis for the jury’s 

decision’ and ‘will . . . reverse [the denial only] “if the evidence supporting the verdict 

was so completely lacking or slight and unconvincing as to make the verdict plainly 

unreasonable and unjust.” ’ ”43 Absent a motion for a new trial before the trial court, we 

41	 (...continued) 

negligent by acting or failing to act. A person is negligent if 

he or she does something that a reasonably careful person 

would not do in the same situation, or fails to do something 

that a reasonably careful person would do in the same 

situation. The law does not require exceptional caution or 

skill, only reasonable care. 

42 Bolden v. City of Kodiak, 439 P.2d 796, 801 (Alaska 1968). 

43 Hogg v. Raven Contractors, Inc., 134 P.3d 349, 352 (Alaska 2006) 

(footnote omitted) (first quoting Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001), then 

quoting Grant v. Stoyer, 10 P.3d 594, 596 (Alaska 2000)). 

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“review[] the record to ascertain whether a new trial should be granted on the ground that 

the verdict is contrary to the clear weight of the evidence”44 and whether “there has been 

a miscarriage of justice.”45 We “take the evidence and all inferences reasonably 

deducible therefrom in the light most favorable to the appellee.”46 

1.	 Evidence supports the jury verdict that Ferrick was not 

negligent. 

Based on the evidence, the jury could have reasonably concluded that 

Ferrick was not negligent. Witness testimony suggested that the lanterns were unlikely 

to harm someone even if they fell. The lanterns weighed only about five-and-a-half 

pounds. Kluting testified that the bases of the lanterns were not very high, such that he 

could almost touch them while standing; that the lanterns’ shape made it unlikely the 

entire force generated by a fall would be concentrated on someone’s head; and that it was 

“debatable” whether the lanterns could hurt anyone. Kluting said Ferrick’s temporary 

hanging method was within reasonable “safety margins” because the decorations were 

“lightweight,”“collapsible,”and had no “sharppoints.” Ferrick testified that thelanterns 

were “secured under normal circumstances” and speculated that the lantern fell only 

because of a strong wind. Although Ferrick and Kluting were adverse to Sulzbach, 

reasonable jurors could have believed them. 

And despite Sulzbach’s argument to the contrary, meaningful evidence 

suggests that the dancers were warned not to sit near the lanterns. Kluting testified that 

the dancers were “informed to stay out from underneath the [lanterns] prior to the 

44 Bolden, 439 P.2d at 801. 

45 Heynen v. Fairbanks, 293 P.3d 470, 474 (Alaska 2013) (quoting Bolden, 

439 P.2d at 801). 

46 Jakoski v. Holland, 520 P.2d 569, 575 (Alaska 1974). 

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accident” and that some “dancers . . . told [him] that they had been warned” about being 

under the lanterns. One dancer specifically testified that a Centennial Hall employee told 

her to move “because they’re going to be hanging the decoration.” She testified that 

dancers reacted to the warning by moving away from Ferrick and the lanterns. Another 

dancer also testified that someone told them to move away from where Ferrick was 

working. Sulzbach concedes that “the evidence at trial adduced one instance of either 

[a Centennial Hall] employee or Ferrick moving some dancers physically out of the way 

to hang [a lantern].” 

Sulzbach points to some evidence that might justify a finding that Ferrick 

was negligent, suggesting: Ferrick did not follow approved Centennial Hall hanging 

methods; the dancers were not sufficiently warned; and Sulzbach was significantly 

harmed. But even if Sulzbach’s evidence were persuasive standing alone, she has not 

established that, viewing the record in the light most favorable to upholding the verdict, 

the evidence supporting the jury verdict is “so completely lacking or slight and 

unconvincing as to make the verdict plainly unreasonable and unjust.”47 We accordingly 

affirm the trial court’s denial of a new trial on Ferrick’s negligence and the jury verdict 

in Ferrick’s favor. 

2. Evidence supports the verdict that the City was not negligent. 

Sulzbach contends the jury verdict that the City was not negligent is against 

the clear weight of the evidence. Sulzbach’s argument is unpersuasive; viewing the 

evidence in the City’s favor, substantial evidence supports the jury’s conclusion. First, 

as discussed above, there was testimony that the lantern would not pose an obvious risk 

if it fell and that Ferrick’s temporary hanging method was secure under normal 

circumstances. Second, as discussed above, multiple people testified that at least one 

gg, 134 P.3d at 352. 

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47 See Ho
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

City employee warned the dancers not to sit near where Ferrick was working while he 

was hanging the decorations. And Sulzbach concedes that “the evidence at trial adduced 

one instance of either [a Centennial Hall] employee or Ferrick moving some dancers 

physically out of the way.” Third, the jury could have concluded that the City acted 

reasonably by training Ferrick on how to conduct his decorating. In light of this 

evidence, a jury justifiably could have concluded that the City acted reasonably. 

Sulzbach points to testimony describing the lantern and suggesting that the 

City was negligent because: another lantern fell while Ferrick was working; the City 

worked with Ferrick to hang the lantern; Ferrick did not follow the City’s instructions 

about hanging the lanterns; no City employee supervised Ferrick; and Centennial Hall 

let Ferrick access the building and allowed him to use building equipment. But even 

assuming that all this were true, Sulzbach does not explain why the jury was not 

permitted to rely more heavily on other evidence. Because the jury verdict in the City’s 

favor was not against the clear weight of the evidence such that there was a miscarriage 

of justice,48 we affirm it. 

D.	 The Trial Court Did Not Abuse Its Discretion By Denying A New Trial 

Based On An Initial And Later Corrected Evidentiary Error. 

Alaska Evidence Rule 611(c) states: “On direct examination, leading 

questions should not be allowed except . . . when the witness is hostile, an adverse party, 

or identified with an adverse party.” Sulzbach called Kluting, a City employee, as her 

first witness. Sulzbach’s attorney asked to treat Kluting as an adverse party due to his 

employment and alleged unwillingness to forthrightly answer non-leading questions. 

The trial court agreed that Kluting was an adverse party but decided not to allow leading 

questions until Kluting demonstrated that he was hostile. Sulzbach’s attorney renewed 

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48 See supra notes 42-46 and accompanying text (setting out standard of 

review for reversing jury verdict). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

this request several times during Kluting’s direct examination, but, concluding that 

Kluting was not hostile, the court did not change its ruling. During a recess the court 

reconsidered and concluded that it should have let Sulzbach’s attorney ask leading 

questions on direct examination because adverse parties need not also be hostile under 

Rule 611(c). The court then allowed Sulzbach’s attorney to ask leading questions during 

re-direct examination. 

After trial Sulzbach moved for a new trial on the ground that the court’s 

initial error was highly prejudicial. The court reviewed the transcript and denied the 

motion for three reasons: (1) “Sulzbach had sufficient opportunities to elicit testimony 

from Kluting”; (2) “Sulzbach [was] unable to point to any favorable information [she 

was] unable to elicit from Kluting”; and (3) “Sulzbach [was] unable to explain how 

examination of Kluting was otherwise not effective.” 

The trial court did not abuse its discretion by denying a new trial based on 

its initial error because, for the reasons the court outlined, the error did not prejudice 

Sulzbach.49 The court permitted Sulzbach to ask leading questions on re-direct 

examinationofKluting,giving Sulzbach manyopportunitiesto elicit favorabletestimony 

from Kluting using leading questions. Sulzbach also had the opportunity to crossexamine and re-cross-examine Kluting during the City’s case. Sulzbach points to no 

testimony that she hoped to elicit from Kluting but could not. 

Sulzbach contends that “the timing of the error” was prejudicial because 

“what is first said and what the fact finders’ attention is first called to, is critical in 

framing a case and setting how additional information will be evaluated.” But Sulzbach 

49 See Marron v. Stromstad, 123 P.3d 992, 1011 (Alaska 2005) (noting that 

“party requesting a new trial [based on evidence-related error] has the burden of proving 

both error and prejudice” and that we have “great reluctance to interfere with a [trial] 

court’s decision to deny a new trial”). 

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has not convinced us that jurors would have perceived Kluting’s responses to leading 

questions differently on direct versus re-direct examination, occurring about 75 minutes 

apart over the course of a two-week trial in which Kluting was the first witness. And the 

trial court, having been in the courtroom with the jurors, was in the best position to 

determine the prejudice caused by its own error, which it corrected in a reasonable 

exercise of discretion.50 

The trial court did not abuse its discretion by denying a new trial on the 

ground that it made, then quickly corrected, an evidence-related error.51 

V. CONCLUSION 

The judgment is AFFIRMED. 

50 See Hogg, 134 P.3d at 353 (“Unlike this court, for which testimony is 

necessarily but words on a page, the trial court had the opportunity to hear the witnesses 

testify in person.”). 

51 Sulzbach raised other issues in her points of appeal, including various 

attorney’s fees issues. Those arguments are waived as insufficiently briefed because she 

does not mention them at all in her briefing. See Casciola v. F.S. Air Serv., Inc., 120 

P.3d 1059, 1062 (Alaska 2005) (“We do not consider arguments that are inadequately 

briefed.”). 

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