Fischer v. Home Depot U.S.A., Inc.

          ORDER RE PENDING MOTIONS

          SHARON L. GLEASON UNITED STATES DISTRICT JUDGE.

         Before the Court are two motions: at Docket 17, Defendant Home Depot U.S.A. Inc.'s (“Home Depot”) Motion for Summary Judgment and Alternative Motion for Ruling that the Jury Be Allowed to Apportion Fault to the Unidentified Shoplifter; and, at Docket 22, Home Depot's Alternative Motion for Ruling of Law that Plaintiff May Not Recover the Difference Between the Providers' Rack Rates [and] the Rates Accepted by Plaintiff's Providers for Medical Services Rendered. Plaintiff Marcia Fischer responded in opposition to the first motion at Docket 21. Home Depot replied at Docket 25. Ms. Fischer responded in opposition to the second motion at Docket 26. Home Depot replied at Docket 27. Oral argument was not requested and was not necessary to the Court's decision.

         BACKGROUND

         On July 1, 2017, Home Depot employee Tim McKitrick noticed a man carrying a nail gun toward the store's main entrance.^[1] Mr. McKitrick notified the store's front-end supervisor of a potential shoplifter and moved toward the store entrance. As the shoplifter approached the entrance, Mr. McKitrick asked twice to see a receipt; both times, the shoplifter ignored Mr. McKitrick's request.^[2] The shoplifter then walked through the internal doors into the entrance vestibule, at which point a tag on the nail gun triggered the store's electric alarm system (“EAS”).^[3] Mr. McKitrick asked for a receipt a third time and walked behind the man into the vestibule.^[4] The shoplifter then ran out the store's entrance. At the threshold of the exterior doors, the shoplifter collided with Ms. Fischer, who fell to the ground and broke her fingers.^[5] Ms. Fischer asserts that she heard a male “yelling at [the shoplifter] to ‘stop, bring it - that back'” prior to the collision; Mr. McKitrick does not recall telling the shoplifter to stop.^[6]

         After the collision, Mr. McKitrick “instinctively grabbed the shoplifter's hand.”^[7] Ms. Fischer asserts that the shoplifter then “slipped away” from Mr. McKitrick; Mr. McKitrick asserts that he “let the shoplifter go to render first aid to [Ms. Fischer].”^[8] The shoplifter ran to a vehicle and fled the scene. He has not been identified or apprehended.^[9]

         At the time of the incident, Home Depot had policies that prohibited certain employees from chasing shoplifters, accusing customers of shoplifting, or detaining customers under certain circumstances.^[10] These policies were intended to prevent injury to employees and customers.^[11] Following the incident, Home Depot informed Mr. McKitrick that his “actions in requesting a receipt were appropriate but that [he] should not have grabbed the shoplifter after he knocked over [Ms. Fischer].”^[12]

         After receiving medical treatment for her injuries, Ms. Ficher's medical providers billed her for $21, 467.50 in medical expenses.^[13] However, the amounts paid by Medicare and by Ms. Fischer's insurance to Ms. Fischer's medical providers was lower than the amount charged.^[14] The providers accepted the amounts paid as full and final payment for the services rendered.

         On August 22, 2018, Ms. Fischer filed a Complaint in the Superior Court for the State of Alaska, Third Judicial District at Anchorage.^[15] On October 1, 2018, Home Depot removed the case to this Court pursuant to 28 U.S.C. § 1332(a)(1).^[16]Ms. Fischer asserts in the Complaint that “one of [Home Depot's] employees negligently and/or gross negligently and/or recklessly accused and/or pursued a shoplifter which was a substantial factor in causing the shoplifter to flee and collide with [Ms. Fischer] who was a customer entering the Home Depot[, ] . . . which was a substantial factor in causing serious injury to [Ms. Fischer] for which [Home Depot] is liable.”^[17] Ms. Fischer also asserts that Home Depot “is liable for negligent hiring and/or training and/or supervision which was a substantial factor in causing harm to the plaintiff.”^[18] She seeks damages exceeding $75, 000 “for past and/or future . . . medical expenses, pain and suffering, disability, loss of capacity for enjoyment of life, inconvenience, physical impairment, disfigurement and other non-pecuniary damages[.]”^[19]

         On March 13, 2019, Home Depot filed its Motion for Summary Judgment. On April 8, 2019, Home Depot filed its Alternative Motion for Ruling of Law.

         JURISDICTION AND APPLICABLE LAW

         The Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332 because this is a civil action between citizens of different states and the amount in controversy exceeds $75, 000.00, exclusive of interest and costs.^[20] Under diversity jurisdiction, the Court applies federal procedural law and Alaska substantive law.^[21]

         DISCUSSION

         Home Depot advances three primary arguments in the two motions. First, it contends that summary judgment should be granted in favor of Home Depot. Second, it contends that if the Court does not grant summary judgment, a jury should be allowed to apportion fault for Ms. Fischer's injury to the unidentified shoplifter. Third, it contends that Ms. Fischer may not recover economic damages for the difference between her medical providers' “rack rates” and the rates accepted by Ms. Fischer's providers as full payment for the medical services rendered.

         A. Summary Judgment

         Federal Rule of Civil Procedure 56(a) directs a court to grant summary judgment if the movant “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” When considering a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”^[22] To reach the level of a genuine dispute, the evidence must be such “that a reasonable jury could return a verdict for the non moving party.”^[23] If the evidence provided by the non-moving party is “merely colorable” or “not significantly probative, ” summary judgment is appropriate.^[24]

         In order to prove a negligence claim under Alaska law, a plaintiff “must show that: (1) the defendants owed [her] a duty of care, (2) the defendants breached this duty, (3) [she] was injured, and (4) [her] injury was the factual and proximate result of the defendants' breach.”^[25] Home Depot does not dispute that Ms. Fischer suffered an injury. The Court will thus consider whether Home Depot had a duty of care to Ms. Fischer, and whether, when the evidence is reviewed in the light most favorable to Ms. Fischer, a reasonable jury could conclude that the remaining two elements of Ms. Fischer's negligence claim (breach and causation) are satisfied.^[26]

         1. Duty

         “[B]efore a defendant can be held liable for negligence, it must be established that the defendant owed a duty of care to the plaintiff.”^[27] “The scope and existence of a duty of care are questions of law[.]”^[28] “When determining the existence of a duty of care, summary judgment is appropriate where ‘the only reasonable inference from the undisputed facts is that one party owed another no duty whatsoever-or owed a duty clearly and vastly narrower in scope than the one that the other party asserts.'”^[29] The Alaska Supreme Court uses a three-step process to determine whether a duty of care exists:

First, we look for a duty imposed by statute. If none exists, we then determine if the current case falls in the class of cases controlled by existing precedent. If no closely related case law exists, we weigh the public policy considerations enumerated in D.S.W. v. Fairbanks North Star Borough School District.^[30]

         Here, Ms. Fischer does not allege a statutory duty, so the Court turns first to the case law. The Alaska Supreme Court does not appear to have articulated a duty of care clearly applicable to the conduct at issue here. In Webb v. City & Borough of Sitka, the Alaska Supreme Court held that:

A landowner or owner of other property must act as a reasonable person in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden on the respective parties of avoiding the risk.^[31]

         However, subsequent cases indicate that the definition of “conditions” that landowners may be required to protect against applies only to the physical conditions of a property.^[32] Accordingly, this case is not controlled by Webb. And yet, Webb is the closest analogue to this case that the Court has identified among Alaska Supreme Court precedent.

         While Alaska Supreme Court precedent does not appear to establish the existence of a duty of care in this case, it also does not foreclose the possibility that Home Depot owed a duty of care to Ms. Fischer. In Schumacher v. City & Borough of Yakutat, the Alaska Supreme Court held that the city “did not have a duty to protect [a child] from obvious risks created by his own conduct[.]”^[33] The Supreme Court also noted that “other courts have expressly excluded third party activity” from the definition of the “‘conditions' that landowners may be required to protect against[.]”^[34] Here, however, Ms. Fischer does not allege that Home Depot should be held liable for failing to protect Ms. Fischer from her own dangerous actions or the dangerous actions of a third party. Rather, the Court reads Ms. Fischer's complaint to allege that a Home Depot employee engaged in dangerous conduct-aggressively pursuing the shoplifter-that was a substantial factor in causing her injury. Similarly, in R.E. v. State and subsequent cases, the Alaska Supreme Court has “applied Restatement (Second) of Torts sections 314 through 320 to determine whether the defendant had a duty to protect the plaintiff from a third party's dangerous conduct.”^[35] In Estate of Mickelsen ex rel. Mickelsen v. N.-Wend Foods, Inc., however, the court noted that “[i]n each of the R.E. cases, the defendant was a government entity and the dangerous third party conduct at issue was intentional criminal behavior.”^[36] The court declined to apply this precedent in Mickelsen, where neither of these conditions was present.^[37] Finally, in Hurn v. Greenway, the Alaska Supreme Court declined to impose a duty to “refrain from teasing or bullying someone known to be potentially violent.”^[38] The court declined to do so in part because it “refuse[d] to give victims the duty to prevent their own abuse and then hold them liable when they fail.”^[39] The Hurn court's reasoning is inapposite here.

         Because neither a statute nor case law establishes whether a duty of care exists in this instance, the Court next “weigh[s] the public policy considerations enumerated in D.S.W. v. Fairbanks North Star Borough School District” to determine whether the Alaska Supreme Court would impose such a duty.^[40] Of the considerations enumerated in D.S.W., “foreseeability of harm is the most important, followed closely by the burden on the defendant and the consequences to the community: there can be no duty where the harm is unforeseeable, but foreseeability alone is insufficient to establish a duty if the burden of taking care or the effect on society is too harsh.”^[41]

         As a threshold matter, the Court must settle upon an articulation of the duty Home Depot allegedly breached. Ms. Fischer does not precisely define the duty in question. Home Depot contends that it can be held liable for Ms. Fischer's injury only if the Court finds a duty “to refrain from asking for receipts three times, [] to refrain from walking behind a suspected shoplifter to ask for a receipt, and [] to refrain from asking a suspected shoplifter to bring back $400 of merchandise that has just triggered an alarm.”^[42] Essentially, Home Depot contends that it can be held liable for Ms. Fischer's injury only if the Court imposes a duty to avoid the precise conduct alleged in this case. This approach would be at odds with the Alaska Supreme Court's application of the D.S.W. “foreseeability” factor: “foreseeability is a broad concept and does not require that the precise harm in a given case be predictable.”^[43] The Court will accordingly frame its inquiry in broader terms by determining whether a store owner is under “a duty to take reasonable care for the safety of its patrons.”^[44]

         Here, the D.S.W. factors support a holding that Home Depot owed such a duty to Ms. Fischer. First, the events leading to Ms. Fischer's injury fell within the broad concept of foreseeability. The Alaska Supreme Court has held that consequences are not foreseeable when “after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.”^[45] Here, it is foreseeable that a shoplifter would attempt to flee when pursued or when pursuit appears imminent, and that the shoplifter's attempt to avoid apprehension could result in injury to bystanders. Reviewing the evidence in the light most favorable to Ms. Fischer, it does not seem “highly extraordinary” that Mr. McKitrick's actions “should have brought about the harm” allegedly committed.^[46]

         Additionally, the burden of the duty on Home Depot and the consequences to the community weigh in favor of the duty's imposition. In Mickelsen, a plaintiff alleged that a restaurant created an entry and exit system that enticed patrons to perform a dangerous traffic maneuver, that the restaurant knew the maneuver was regularly performed, and that this condition led to a fatal accident.^[47] The Alaska Supreme Court noted that:

Holding that a business has a duty to conduct one of its core operations in a safe manner does not involve the transformation of the law of negligence that would have resulted had we held, in Schumacher, that the city had a duty to protect all who entered its land from harming themselves through self-destructive behavior.^[48]

         The Mickelsen court ultimately described the defendant's duty more narrowly.^[49] Nevertheless, the court's reasoning suggests that imposing a duty on Home Depot to Ms. Fischer would be appropriate here. This result would not preclude property owners or their agents from pursuing shoplifters; rather, it would incentivize them to conduct such pursuits safely. Furthermore, Home Depot's policies related to shoplifting suggest that Home Depot already recognized the risks that such pursuit poses to bystanders and attempted to minimize those risks.^[50] Accordingly, the two most significant D.S.W. factors weigh in favor of imposing a duty in this instance.^[51]

         For the foregoing reasons, the Court concludes that Home Depot owed Ms. Fischer a duty to take reasonable care for her safety at its premises.^[52]

         2. Breach

         The Court must determine whether a reasonable jury could conclude that Home Depot's agent breached Home Depot's duty of care owed to Ms. Fischer. “Whether a standard of care was breached is a factual determination.”^[53]

         Here, the parties dispute at least one aspect of the incident that led to Ms. Fischer's injury. Ms. Fischer contends that prior to the collision between the shoplifter and Ms. Fischer, she heard a male “yelling at [the shoplifter] to ‘stop, bring it-that back.'” Mr. McKitrick does not recall telling the shoplifter to stop.^[54]Also relevant is Home Depot's policies regarding shoplifting, which prohibit employees from “chasing” shoplifters.^[55] Viewing these facts in the light most favorable to Ms. Fischer for purposes of this motion, the Court finds that a reasonable jury could conclude that Mr. McKitrick's actions caused the shoplifter to bolt and collide into Ms. Fischer, and that this constituted a breach of Home Depot's duty of care to Ms. Fischer.

         3. Causation

         Viewing the facts in the light most favorable to Ms. Fischer, the Court must next determine whether a reasonable jury could conclude that a breach of Home Depot's duty of care owed to Ms. Fischer was a proximate cause of Ms. Fischer's injuries. “Determinations of proximate cause usually involve questions of fact within the province of the jury; proximate cause becomes a matter of law only where reasonable minds cannot differ.”^[56]

         Home Depot contends that this element cannot be satisfied because it is impossible to determine whether the shoplifter bolted because of the alarm system or Mr. McKitrick's conduct.^[57] However, this uncertainty would not preclude a jury from making a reasonable inference as to causation based on the evidence before it.^[58] Home Depot also cites cases in which summary judgment was found to be appropriate because no reasonable jury could have found the causation factor satisfied.^[59] But each of those cases involved very attenuated chains of causation, and are distinguishable on this basis.^[60] Finally, Home Depot cites two cases- Butler v. K-Mart Corp.^[61]and K-Mart Corp. v. Lentini^[62]-in which courts found the causation element was not satisfied because a shoplifter's conduct was not foreseeable.^[63] But these cases are factually distinguishable. In Butler, the store's security officer “stated unequivocally that the shoplifting suspect had fled without being chased by anyone in the store, ” and “[n]o other evidence was introduced below to indicate that any store employee chased the suspect” prior to the plaintiff's injury.^[64] In Lentini, a “calm and cooperative” shoplifter who had been detained by store security “suddenly left his chair and ran out of the conference room and through the store, colliding with the plaintiff.”^[65] There is no indication that the shoplifter was pursued by any store employee.

         In summary, the Court finds that the Alaska Supreme Court would likely conclude that Home Depot owed a duty of reasonable care to Ms. Fischer as a matter of law. The Court further concludes that when all reasonable inferences are drawn for Ms. Fischer, a reasonable jury could determine that Home Depot's duty of care was breached and that the breach proximately caused Ms. Fischer's injuries. Accordingly, Home Depot's motion for summary judgment will be denied.

         B. Apportionment of Fault to Unidentified Shoplifter

         Home Depot next contends that if the Court denies its motion for summary judgment, “fault must be apportioned to the unknown tortfeasor.”^[66] Ms. Fischer does not oppose this portion of Home Depot's motion.^[67] Pursuant to AS 09.17.080, “[a] jury is permitted to consider, based on the facts of the case, whether an apportionment of fault should be attributed to an unknown tortfeasor.”^[68] Therefore, should this case proceed to trial, a jury will be allowed to apportion fault to the unidentified shoplifter.

         C. Recovery of Difference Between Rack Rates and Rates Accepted by Plaintiff's Providers

         Ms. Fischer received medical treatment for injuries resulting from her collision with the shoplifter.^[69] She was billed $21, 467.50 for that care.^[70] The amounts ultimately paid by Medicare and by Ms. Fischer's insurance for this treatment were considerably lower than the amounts charged by Ms. Fischer's providers.^[71] Nevertheless, the providers accepted these payments as full and final payment for the services rendered. Home Depot contends that because Ms. Fischer's providers agreed to accept the lower amount, “the . . . differential [between the amount originally charged and the amount accepted as payment] is in no way an actual loss incurred by [Ms. Fischer], and is in no way necessary to make [Ms. Fischer] whole.”^[72] Ms. Fischer responds that plaintiffs are “normally entitled to recover the reasonable value of medical services necessary because of the defendant's negligent conduct.”^[73] She further contends that “the discrepancies [between the amounts originally charged and the amounts accepted as payment] . . . should be treated as unsubrogated collateral source payments” and can be offset by the Court following trial pursuant to the procedure set out in AS 09.17.070.^[74]

         When the parties submitted their briefing, it was an open question under Alaska law whether a plaintiff could recover the difference between the medical expenses charged by the plaintiff's providers and the rates accepted by those providers as full payment. However, the Alaska Supreme Court recently issued an opinion that answers this question. In Weston v. AKHappytime, LLC, a pedestrian who was injured when she slipped and fell on ice in a hotel parking lot brought a negligence action against the hotel.^[75] The hotel “moved for a pretrial ruling excluding evidence of [the plaintiff's] medical bills other than the adjusted, preferred rates accepted by her providers as full and final payment for ...