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Kessey v. Frontier Lodge3/1/2002
No. 5541
I. INTRODUCTION
Gabriel Kessey sued Frontier Lodge and others alleging that they negligently served alcohol to an intoxicated driver who later drove his truck into a car occupied by Kessey. Frontier Lodge moved for summary judgment, supporting its motion with affidavits from its bartender and the driver. Despite Kessey's Alaska Civil Rule 56(f) request for a thirty-day continuance to depose the bartender and the driver, the superior court granted summary judgment against Kessey. We reverse, because it was an abuse of discretion not to grant Kessey's continuance request.
II. FACTS AND PROCEEDINGS
Gabriel Kessey was injured in May 1997 when Scott Morrison drove his truck into a car occupied by Kessey. Morrison was intoxicated. Kessey sued Frontier Lodge, Inc., Boulder Investments, Inc. (doing business as the Frontier Club), and others in April 1999 for criminal negligence; his complaint alleged that Frontier's employees had served alcohol to a visibly intoxicated Morrison.
Boulder moved for summary judgment in late March 2000. Boulder supported its motion with affidavits from Morrison and Frontier Lodge bartender Tacey Rahoi. Morrison stated in his affidavit that "[Morrison] was never in the Frontier Club . . . on the evening in question," and that " he bar that was in a log-building structure where was served an alcoholic beverage after left Reflections was the bar located in the Captain Bartlett Inn." He stated that he left Reflections between 12:30 a.m. and 1:30 a.m. Rahoi stated that she was the only bartender at Frontier Lodge that night, that she "did not serve Scott Morrison alcohol that night," and that she sold the last beer of the night at 11:47 p.m., before the time Morrison claimed he left Reflections. Frontier Lodge, Inc. joined in Boulder's motion. For convenience, we sometimes refer here to the corporate defendants Frontier Lodge, Inc. and Boulder Investments, Inc. collectively as "Frontier," and to the establishment as "Frontier Lodge."
The superior court granted Kessey's motion for a ten-day extension to oppose the summary judgment motion. Kessey's opposition argued that a transcript attached to the summary judgment motion created a material fact dispute about whether Frontier had served Morrison that night, precluding summary judgment. The transcript was of a Fairbanks Police Department interview with Morrison the night of the accident. During the interview, Morrison told Detective Aaron Ring that he had gone to three bars that night: Reflections, a second bar, and a "log-cabin place." Kessey also relied upon Detective Ring's transcribed comments during the interview in which he suggested to Morrison that the "log building" was Frontier Lodge. Kessey's opposition to the summary judgment motion did not produce any evidence that contradicted Rahoi's or Morrison's statements that Morrison was not at Frontier Lodge on the night of the accident. But Kessey's opposition requested that he be allowed an additional thirty days under Alaska Civil Rule 56(f) to take the depositions of Morrison, Rahoi, Detective Ring, and accident witnesses to "attempt to sort out . . . what were the 2 locations besides the Captain Bartlett where Morrison drank that night." Without ruling on Kessey's Rule 56(f) request, the superior court granted summary judgment to Frontier Lodge, Inc. and Boulder and dismissed Kessey's claim against them in May 2000. The court later entered Alaska Civil Rule 54(b) final judgments for Frontier Lodge, Inc. and the Boulder defendants.
Kessey appeals.
III. DISCUSSION
A. Standard of Review
We review for abuse of discretion a decision to d
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