Cabales et al v. Morgan et al

Filing 73

ORDER denying #67 Motion for Reconsideration. Signed by Judge John W. Sedwick on 8/7/15. (NKD, COURT STAFF)

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

JACLYN CABALES and JONATHAN
CABALES,
Plaintiffs,
vs.
ALBERT E. MORGAN, D.C., ARCTIC
CHIROPRACTIC BETHEL, LLC, and
CHRISTOPHER F. TWIFORD, D.C.,
Defendants,
vs.
UNITED STATES OF AMERICA,
Third-Party Defendant.

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3:14-cv-00161-JWS
ORDER AND OPINION

[Re: Motion at docket 67]

I. MOTION PRESENTED
At docket 66, the court granted a motion for summary judgment in favor of
Defendant Christopher Twiford (“Twiford”). Plaintiffs Jaclyn Cabales (“Cabales”) and
Jonathan Cabales (collectively “Plaintiffs”) filed a motion for reconsideration at docket
67, arguing that the court erred in granting the motion. At docket 68, the court denied
the motion for reconsideration as to Plaintiffs’ assertion that a delay in getting Cabales
to the hospital supports a claim against Twiford, but it requested a response from

Twiford as to the negligent hiring claim and the court’s ruling in favor of Twiford on that
claim.
II. BACKGROUND
When granting Twiford’s motion for summary judgment as to Plaintiffs’ negligent
hiring claim, the court determined that assuming Twiford even had a duty, which it did
not definitively decide, the extent of any such duty was only that he hire a competent
and non-dangerous employee. The court concluded that there was no evidence that
Morgan was incompetent or dangerous.1
Plaintiffs filed the motion for reconsideration. In their motion, they emphasized
that Twiford knew Morgan used a handkerchief to perform manipulations and that their
expert’s opinion was that such a practice is unusual and dangerous. In response to
that argument, the court concluded at docket 68 that Plaintif fs’ expert’s opinion may
well create a disputed issue of fact regarding the propriety of “handkerchief
manipulations.” However, the court also noted at docket 68 that even assuming the
court were to conclude that there is a factual dispute about the safety of “handkerchief
manipulations” which would foreclose summary judgment, that would not end the
inquiry because the court would nonetheless have to then decide two issues the court
identified but found unnecessary to reach in its original order: (1) whether or not
Plaintiffs actually pled a negligent hiring claim against Twiford; and (2) whether or not
Twiford individually may be held responsible for the engagement of Morgan by Arctic

1

Doc. 66 pp. 5-8.

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Chiropractic. Thus, the court directed Twiford to file a response that addressed all the
remaining issues. Plaintiffs were allowed to reply.
III. STANDARD OF REVIEW
Under the law of the case doctrine, a court is generally precluded from
reconsidering an issue that has already been decided by the same court or a higher
court in the same case.2 However, as long as a district court retains jurisdiction over a
case, it has inherent power to reconsider and modify an interlocutory order for sufficient
cause.3 That inherent power is not unfettered: “the court may reconsider previously
decided questions in cases in which there has been an intervening change of
controlling authority, new evidence has surfaced, or the previous disposition was clearly
erroneous and would work a manifest injustice.”4
IV. DISCUSSION
While Twiford argues that Plaintiffs’ complaint did not allege a negligent hiring
claim, he nonetheless concedes that Plaintiffs’ initial disclosures put him on notice as to
their intent to raise such a claim. He acknowledges that he consented to litigate the
issue despite Plaintiffs’ failure to make sure the complaint was amended accordingly.
Twiford argues, however, that reconsideration is not appropriate because
Plaintiffs’ expert’s opinion that handkerchief manipulations are unusual and dangerous
does not create an issue of fact precluding summary judgment. The basis for his

2

Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993).

3

City of Los Angeles v. Santa Monica, 254 F.3d 882, 885 (9th Cir. 2001).

4

Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir. 1995); see also Sch. Dist.
No. 1J, Multnomah County v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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argument is that the expert and his opinion have not been properly qualified and should
be excluded. The court agrees with Plaintiffs’ position that such an argument should
not be made in a reconsideration response and that the ex pert’s opinion at this stage
creates an issue of fact regarding the safety of handkerchief manipulations. However,
even with that disputed fact, the court concludes that summary judgment in favor of
Twiford is nonetheless warranted because Twiford cannot be held individually liable for
the tort of negligent hiring and thus such a disputed fact is immaterial.
Alaska case law recognizes a cause of action for negligent hiring against an
employer in certain situations. It has noted “that an em ployer is liable to a third person
for injuries inflicted upon him by an employee who has been retained in employment
after the employer knows, or ought to know, that because of his incompetency or
vicious propensities he is likely to assault persons during the course of his
employment.”5 Negligent hiring is usually presented as a claim of direct negligence by
the hiring entity and not the individual agent conducting the hiring process and making
the hiring decision. Indeed, the dearth of case law involving a claim for negligent hiring
against an employer’s agent supports such a conclusion.
There is no Alaska case that specifically addresses the question of whether an
individual administrative or supervisory employee may be individually liable for the tort
of negligent hiring. Plaintiff cites to Ayulick v. Red Oaks Assisted Living, Inc.,6 for the
proposition that an individual agent doing the hiring on the employing entity’s behalf

5

Svacke v. Shelley, 359 P.2d 127, 130 (Alaska 1961) (emphasis omitted).

6

201 P.3d 1183 (Alaska 2009).

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cannot be individually liable for the tort of negligent hiring. The holding in Ayulick is not
that broad. There, the Supreme Court of Alaska merely upheld the trial court’s directed
judgment in favor of the individual who had recommended the dangerous individual for
employment. The court concluded that the individual had discharged any duty she
might have had. It did not specifically consider whether she, as the person
recommending that individual for employment, had a duty in relation to the plaintiffs in
the first place.
Whether a duty exists is a matter of law.7 The court first looks to statutes,
regulations, contracts, or other typical sources to determine whether an actionable duty
exists.8 If there is no duty imposed, the court determines whether the factual scenario
“falls in the class of cases controlled by existing precedent.”9 Then, if no existing case
law is similar, the court weighs certain public policy “factors that support and oppose the
imposition of liability.” Those factors are:
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.10

7

Dore v. City of Fairbanks, 31 P.3d 788 (Alaska 2001).

8

McGrew v. State Dep’t of Health & Soc. Servs., 106 P.3d 319, 322 (Alaska 2005).

9

Dore, 31 P.3d at 793.

10

Wiersum v. Harder, 316 P.3d 557, 566 n. 39 (Alaska 2013) (citing D.S.W. v.
Fairbanks North Star Borough Sch. Dist., 628 P.2d 554, 555 (Alaska 1981)).

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Here, there is no statutory or similar source imposing a legal duty on Twiford, as
Arctic Chiropractic’s hiring agent, to protect Plaintiffs from harm caused by another
employee whom Twiford hired to work for Arctic Chiropractic. Case law, however,
assists with the analysis. Alaska courts have “previously relied upon the Restatement
(Second) of Torts to assist [the] determination of whether a defendant has a duty to
protect a victim from third party harm.”11 Under the Restatement, a person generally
has no duty to protect a victim from third party harm except when there is a special
relationship between the defendant and the third party or between the defendant and
the victim.12 Here, there is no special relationship between Twiford and Morgan.
Twiford was merely an employee of Arctic Chiropractic; he was not Morgan’s employer.
Also, there is no special relationship between Twiford and Plaintiffs. While Twiford was
Cabales’ chiropractor at Arctic Chiropractic in the past, the type of special relationships
of concern under the Restatement are more specific. The special relationships
identified in the Restatement are between common carriers and their passengers,
innkeepers and their guests, landowners and their invitees, “and a victim and a
defendant who takes custody of the victim under circumstances which deprive the
victim of his normal opportunities for protection.”13
The court finds a ruling by the Supreme Court of California in C.A. v. William S.
Hart Union High School District14 persuasive here. There, the court held that school
11

Dore, 31 P.3d at 793.

12

Id. at 793 (citing Restatement (Second) of Torts § 314 (1965)).

13

Id. at 793-94 (citing Restatement (Second) of Torts §§ 315 cmt. c. & 314A & 320)).

14

270 P.3d 699 (Cal. 2012).

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personnel owed a duty of care when hiring and supervising employees to protect
students from foreseeable injury at the hands of those employees. However, the
potential legal responsibility of school district administrators for their hiring decisions
stemmed from the “special relationship” they had with students under their custody and
supervision.15 It concluded that “[a]bsent a special relationship, there can be no
individual liability to third parties for negligent hiring . . . .”16
Plaintiffs cite Hill v. Beverly Enterprises-Mississippi, Inc.17 and Bloxom v. City of
Shreveport18 in support of their argument that an individual who makes a hiring decision
within a company can be individually liable for that negligent decision. Those cases are
distinguishable. In Hill, the court held that the administrator of a nursing home was
potentially individually liable for negligent hiring and supervision, but the duty stemmed
from state cases and statutes specifically related to nursing home administrators. In
Bloxom, the defendant was a corporate officer of a taxi cab company and made the
decision to hire a known registered sex offender to drive taxis for the company. The
court acknowledged that a “common carrier is held not simply to a reasonable degree of
care, but to the highest degree of care” and determined that given this imposition of a
high degree of care, “the officer of such a company has an obvious duty to the public to
properly vet job applicants prior to their employment.”19 There is no similar special
15

Id. at 709.

16

Id.

17

305 F. Supp. 2d 644 (S.D. Miss. 2003).

18

103 So.3d 383 (La. Ct. App. 2012).

19

Id. at 391.

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relationship here which would justify making Twiford himself liable for the hiring decision
he made as an agent of Arctic Chiropractic. Ultimately, Arctic Chiropractor was
Morgan’s employer, not Twiford. Thus, liability for any negligent hiring falls on Arctic
Chiropractic.
V. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion at docket 67 is DENIED.

DATED at Anchorage, Alaska, this 7th day of August 2015.

/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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