United States District Court, D. Alaska
ORDER AND OPINION
JOHN W. SEDWICK, District Judge.
I. MOTION PRESENTED
[Re: Motion at docket 67]
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.
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.
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 Plaintiffs' 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 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. 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. 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."
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 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 expert'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 employer 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." 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.,  for the proposition that an individual agent doing the hiring on the employing entity's behalf 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 ...