United States District Court, D. Alaska
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 ...