Wolcoff et al v. United States of America

Filing 216

ORDER: re Motions for Ruling of Law at 182 and 192 , see order for full details. Signed by Judge Sharon L. Gleason on 09/04/2012. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ROBERT H. WOLCOFF and HEATHER
WOLCOFF,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

Case No. 3:08-cv-00032-SLG

ORDER RE MOTIONS FOR RULING OF LAW
On June 29, 2012, the plaintiffs filed a Motion for Ruling of Law. 1

The

government filed an opposing Motion for Ruling of Law on July 23, 2012. 2 Both motions
have been fully briefed and oral argument was held on August 24, 2012. 3
In 2005, Mr. Wolcoff sought medical treatment for back pain at the Alaska Native
Medical Center (“ANMC”), a federally-funded hospital. He was operated on at that
facility, allegedly negligently, by Dr. Ann Marie Yost. 4 Dr. Yost was dismissed from this
action on August 12, 2010 in an order granting summary judgment to her based on a
finding that the statute of limitations had run as to any claims the plaintiffs could have

1

Docket 182.

2

Docket 193.

3

Docket 209.

4

See Docket 111 at 2.

asserted against her. 5 In that same summary judgment ruling, the district court also
held that Dr. Yost was acting as an independent contractor and not as an ANMC
employee at the time she treated Mr. Wolcoff. 6

The present motions bear on the

potential liability of the government, the remaining defendant, for Dr. Yost’s actions
under the Federal Tort Claims Act (“FTCA”). 7
The plaintiffs’ motion seeks a ruling “that a hospital has a non-delegable duty to
provide non-negligent medical care to a patient in the operating room when the patient
looks to the hospital as an institution, rather than any particular physician, for care and
the patient is treated by a physician selected by the hospital.”8

The government

presents the issue somewhat differently: it argues that the limited waiver of sovereign
immunity set forth in the FTCA does not extend to the imposition of vicarious liability for
acts by an independent contractor. Thus, the government asserts that the “plaintiffs’
claims based on the alleged actions of Dr. Yost must be dismissed due to lack of
subject matter jurisdiction under the FTCA.” 9

5

See Docket 111 (Order and Opinion granting summary judgment to Dr. Yost); Docket 148
(Mem. No. 10-35805 (9th Cir. Sept. 8, 2011) (affirming district court’s grant of summary
judgment).
6

See Docket 111 at 6-7 (trial court ruling that Dr. Yost acted as an independent contractor).
However, this issue was not addressed by the Circuit Court in the appeal of the summary
judgment ruling. In this regard, the Ninth Circuit held, “Dr. Yost's alleged status as an
independent contractor is a defense relevant only to the Wolcoffs’ FTCA claim and thus belongs
to the United States – the sole proper defendant to that claim. See 28 U.S.C. § 2679(b).”
Docket 148 at 5.
7

28 U.S.C. § 1346(b).

8

Pls.’ Mem. in Supp. at 1-2 (Docket 183).

9

Def.’ Motion for Ruling of Law at 2. (Docket 192).

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DISCUSSION
The FTCA accords the district courts exclusive jurisdiction over
civil actions on claims against the United States, for money
damages, accruing on and after January 1, 1945, for injury or loss
of property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the place
where the act or omission occurred. 10
The FTCA provides a limited waiver of the federal government's sovereign
immunity. It allows the government to be sued for the negligent or wrongful acts of
government employees, subject to certain exceptions. 11 If immunity has been waived,
the FTCA provides that the government is liable in the same manner and to the same
extent as that of a private individual in like circumstances in accordance with the law of
the place where the act or omission occurred. 12 But the FTCA’s waiver “does not
include any contractor with the United States.” 13 As a result, the FTCA does not waive
the government’s sovereign immunity from vicarious liability for the negligence of an
employee of an independent contractor.
As explained by the United States Supreme Court:
Congress, of course, could have left the determination as to whose
negligence the Government should be liable for under the Federal
Tort Claims Act to the law of the State involved, as it did with other
aspects of liability under the Act. But it chose not to do this, and
10

28 U.S.C. § 1346(b).

11

28 U.S.C. §§ 2671 et seq.

12

28 U.S.C. § 1346(b).

13

28 U.S.C. § 2671.

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instead incorporated into the definitions of the Act the exemption
from liability for injury caused by employees of a contractor. While
this congressional choice leaves the courts free to look to the law of
torts and agency to define “contactor,” it does not leave them free
to abrogate the exemption that the Act provides. 14
The plaintiffs’ proposed order seeks application of the Alaska Supreme Court’s
decision in Fletcher v. South Peninsula Hospital, 71 P.3d 383 (Alaska 2003) to this
case. 15 The Fletcher case observed, without deciding, that a hospital may have “a nondelegable duty outside the emergency room in cases in which the hospital selects the
physician.” 16 The Fletcher case followed from the Alaska Supreme Court’s decision in
Jackson v. Power. 17 In Jackson, the plaintiff Mr. Jackson was examined in a hospital
emergency room after falling from a cliff. He was seen by Dr. Power, an independent
contractor with the hospital. Dr. Power was alleged to have initially failed to detect
damage that the fall had caused to Mr. Jackson’s kidneys and, as a result of this failure,
Mr. Jackson lost both kidneys. Drawing an analogy to the duty an airline owes its
passengers, the Alaska Supreme Court held that the hospital had a “non-delegable
duty” to provide non-negligent physician care in its emergency room, and thus was
“vicariously liable as a matter of law for any negligence or malpractice” by the doctor.” 18
The court limited its holding “to those situations where a patient comes to the hospital,

14

Logue v. United States, 412 U.S. 521, 527 (1973).

15

Pls.’ proposed Order Granting Plaintiffs’ Motion for Ruling of Law at 1 (Docket 182-1).

16

Fletcher v. South Peninsula Hosp., 71 P.3d 833, 839 n.26 (Alaska 2003).

17

743 P.2d 1376 (Alaska 1987).

18

Jackson, 743 P.2d at 1384-85.

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as an institution, seeking emergency room services and is treated by a physician
provided by the hospital.” 19
The Wolcoffs have also cited to Dickerson, Inc. v. United States, a case in which
the Eleventh Circuit held that because Florida law created a non-delegable duty of
reasonable care for employers who hired contractors to engage in inherently dangerous
activities, the FTCA’s independent contractor exception would not insulate the
government from “a duty of reasonable care to take precautions ensuring that the
independent contractor carries out the task in a non-negligent manner.” 20 But the basis
for liability in that case was not the alleged negligence of the independent contractor;
rather, it was the alleged failure of the government employees to ensure that the
government contractor had performed its inherently dangerous work in a non-negligent
manner. 21 Although Dickerson is an Eleventh Circuit case, Ninth Circuit case law also
demonstrates that where state law creates a non-delegable duty to oversee the actions
of contractors, the government is not necessarily immune from all claims. But for such
claims to be actionable under the FTCA, they must derive from allegedly negligent
actions of government employees. 22
19

Jackson, 743 P.2d at 1385.

20

Dickerson, 875 F.2d 1577, 1583-84 (11th Cir. 1989).

21

Dickerson, 875 F. 2d at 1583.

22

See McCall v. Irby Constr. Co., 914 F.2d 191, 194 (9th Cir. 1990) (government’s liability must
rest on the negligence of the government’s employees, not the contractor’s, based on “breach of
a nondelegable duty to see that an independent contractor carries out inherently dangerous
activities in a nonnegligent manner.”); Rooney v. United States, 634 F.2d 1238, 1244 (9th Cir.
1980) (holding that California’s imposition of a “nondelegable duty of due care on the employer
of an independent contractor where the work to be performed involves special dangers” may
support government liability for breaching a non-delegable duty of government employees to
insure adequate safety precautions were taken by a contractor).
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The Alaska Supreme Court has termed liability for non-delegable duties as
vicarious liability in both Jackson and Fletcher. 23 But in the context of the Federal Tort
Claims Act, and the potential scope of government liability, this court relies upon the
analysis of the Circuit Courts.

In particular, the Ninth Circuit has held that any

government “liability for breach of [a non-delegable] duty is neither strict nor vicarious
liability. It is not liability for the contractor’s failure to exercise due care . . . It stems from
the duty of the contractor’s employer [i.e. the government] to exercise reasonable care
to see that the contractor abides by his responsibilities in that respect.” 24
Based on the Alaska court’s holding in Jackson and its later description of that
holding in Fletcher, it appears Alaska law supports vicarious liability of a hospital for the
actions of independent contractors, at least in certain emergency room settings. 25 But
the FTCA’s limited waiver of sovereign immunity expressly precludes the imposition of
vicarious liability against the government for the actions of independent contractors
such as Dr. Yost. Stated differently, the FTCA precludes the imposition of liability upon
the government based solely upon a showing that Dr. Yost was negligent. The FTCA
requires that any actionable breach of duty by ANMC must arise from a breach of duty
by employees of the government, and not from alleged negligence on the part of an
independent contractor.

23

See Fletcher, 71 P. 3d at 838; Jackson, 743 P.2d at 838.

24

McGarry v. U.S., 549 F. 2d 587, 590 (9th Cir. 1976).

25

But see AS 09.65.096, enacted after the Jackson decision, which limits such liability of
hospitals if the hospital complies with certain notice and insurance requirements
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The extent to which Alaska law and the facts of this case might support a claim
that ANMC employees breached a non-delegable duty of reasonable care to take
precautions to insure that Dr. Yost carried out her tasks in a non-negligent manner is
not directly before the court at this time.
CONCLUSION
For the foregoing reasons, this court GRANTS the government’s Motion for
Ruling of Law at docket 193, and finds that the United States is not subject to vicarious
liability for any negligence by Dr. Yost, and DENIES the plaintiffs’ Motion for Ruling of
Law at docket 182.
DATED at Anchorage, Alaska this 4th day of September, 2012.

/s/ Sharon L. Gleason
United States District Judge

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