Supreme Court allows lawsuit against Chilkoot Charlie's to proceed

rmauer@adn.comAugust 9, 2013 

The Alaska Supreme Court on Friday reversed a lower court ruling that had tossed out a lawsuit against Chilkoot Charlie's bar over a stabbing death nine years ago by a violent, drunken driver.

In a 3-2 decision, the upper court held that the victim's father, one-time political activist Uwe Kalenka, should be allowed to pursue his lawsuit against the famous Spenard watering hole.

Kalenka, who in 2000 had sought and failed to bring a California-style property tax limit to Anchorage by ballot initiative, argued that Chilkoots improperly continued to serve booze to the man who killed his son long after the man was drunk.

A superior court had dismissed the lawsuit in 2010 because there was no direct evidence that bartenders at Chilkoots could have known the man, Jack Elias Morrell, was drunk when they served him.

But after Kalenka appealed, the high court said Kalenka had raised enough questions about Morrell's hours at the bar that the Superior Court judge, John Suddock, shouldn't have issued a summary judgment dismissing the case. The justices sent the case back to Suddock for further proceedings.

The majority opinion was written by Craig Stowers and was joined by Dana Fabe and retired justice Walter Carpeneti.

A dissent by Peter Maassen, joined by Daniel Winfree, said Suddock was correct in dismissing the case. The evidence that Morrell was drunk at Chilkoot's was extrapolated from his blood-alcohol level after his arrest, Maassen wrote. No eyewitness said he appeared to be drunk at Chilkoot's.

In 2006, Morrell, now 39, was convicted of second-degree murder for stabbing Eric Kalenka in a fight at the drive-through lane of Taco Bell on Fifth Avenue. Morrell, driving his cousin's Suburban, bumped Kalenka's car in the line. It was 3:10 a.m. Kalenka was sober, with his girlfriend, and hungry after playing video games. Morrell had spent several hours at Mardi Gras night in Chilkoot's and was legally drunk.

Kalenka, 27, got of out his car. A fight ensued that ended with Kalenka being stabbed multiple times. He bled to death before he could be brought to the hospital.

Morrell is currently an Alaska prisoner at a private prison in Colorado. He's due to be released in 2038.

Morrell later said he drank steadily while at Chilkoot Charlie's, but the attorney for Ewe Kalenka, representing his son's estate, never asked Morrell to testify about how much he drank, according to Judge Suddock. Forensic evidence based on Morrell's blood alcohol content later that night -- 0.27 -- suggested he consumed as many as 19 alcoholic drinks plus energy drinks.

That many drinks "support a reasonable inference that Morrell's intoxication was plain and easily observed while at the bar," the majority opinion said.

But the dissenting justices said that was improper speculation, especially given the capacity crowd at Chilkoot's that night, which would've made difficult for staff to observe any particular patron.

"The (Kalenka) Estate can only ask the jury to imagine the encounters in which his observation could have occurred, and the court's decision today unfortunately invites that speculation," Maassen wrote.

For a successful suit to be brought, the law would require proof that Morrell was not only intoxicated at the bar, "but that he exhibited the outward manifestations of intoxication while he was being served there," Maassen wrote.

Reach Richard Mauer at rmauer@adn.com or 257-4345.

 

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