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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MARCIA FISCHER,
Plaintiff,
v.
HOME DEPOT U.S.A., INC.,
Defendant.
HOME DEPOT U.S.A., INC.,
Third-Party Plaintiff,
v.
JOHN DOE,
Unknown Third-Party Defendant.
Case No. 3:18-cv-00226-SLG
ORDER RE PENDING MOTIONS
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
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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
1 Docket 17-2 (McKitrick Aff.) at 2, ¶¶ 1–2.
2 Docket 17-2 at 2, ¶¶ 5–6; see Docket 17-3 (Interior Surveillance Video) at 00:15–
00:25.
3 Docket 17-2 at 2, ¶ 6; see Docket 17-3 at 00:25–00:26.
4 Docket 17-2 at 2, ¶ 7; see Docket 17-3 at 00:26–00:27.
5 Docket 17-2 at 2, ¶¶ 9–10; Docket 21-3 (Fischer Dep.) at 1, ¶¶ 18–25; see Docket 17-
4 (Vestibule Surveillance Video) at 00:05–00:10.
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“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
6 Docket 21-3 at 1, ¶¶ 21–23; Docket 17-2 at 3, ¶ 16.
7 Docket 17-2 at 3, ¶ 11; see also Docket 21-1 (McKitrick Dep.) at 17, ¶¶ 15–19 (noting
Mr. McKitrick told a police officer he “was following [the shoplifter] out of the store”).
8 Docket 21 at 4; Docket 17-2 at 3, ¶ 12.
9 Docket 17-2 at 3, ¶¶ 13–14; Docket 21 at 7.
10 Docket 1-1 (Complaint) at 2, ¶¶ 6–10; Docket 6 (Answer) at 2–4, ¶¶ 6–10.
11 Docket 1-1 at 2, ¶ 12; Docket 6 at 4, ¶ 12.
12 Docket 17-2 at 3, ¶ 15.
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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
13 Docket 22-2 (Initial Disclosures) at 1.
14 See Docket 32 (Supp. to Alternative Motion) at 2 (tabulating Medicare adjustments).
15 Docket 1-1 at 1.
16 Docket 1 (Notice of Removal).
17 Docket 1-1 at 2, ¶ 5; see also Docket 1-1 at 1, ¶ 3 (asserting that Home Depot is
liable for the actions of its employees “under theories of vicarious liability and/or agency
and/or respondeat superior”).
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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
18 Docket 1-1 at 3, ¶ 21.
19 Docket 1-1 at 4, ¶ 23. The Complaint elsewhere alleges that Ms. Fischer seeks
damages exceeding $100,000. Docket 1-1 at 4, ¶¶ 23, 25.
20 Docket 1 at 3–4.
21 See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
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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
22 Moldex-Metric, Inc. v. McKeon Prods., Inc., 891 F.3d 878, 881 (9th Cir. 2018)
(alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)).
23 Anderson, 477 U.S. at 248.
24 Id. at 249–50.
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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
25 Regner v. N. Star Volunteer Fire Dep’t, Inc., 323 P.3d 16, 21 (Alaska 2014).
26 The Alaska Supreme Court has held that:
As a general rule, issues of negligence are not appropriate for summary
judgment. The rationale for this rule is the elusive nature of the concept of
negligence, the determination of the existence of which requires the
forming of a judgment as to the reasonableness of the conduct of the
parties in the light of all the circumstances of the case.
Neary v. McDonald, 956 P.2d 1205, 1212 (Alaska 1998) (quoting Webb v. City of
Sitka, 561 P.2d 731, 735 (Alaska 1977) (citing Maddox v. River & Sea Marine,
Inc., 925 P.2d 1033, 1035, 1040 (Alaska 1996)).
27 Estate of Mickelsen ex rel. Mickelsen v. N.-Wend Foods, Inc., 274 P.3d 1193, 1198
(Alaska 2012).
28 Schack v. Schack, 414 P.3d 639, 641 (Alaska 2018).
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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
29 Hurn v. Greenway, 293 P.3d 480, 483 (Alaska 2013) (quoting Arctic Tug & Barge, Inc.
v. Raleigh, Schwarz & Powell, 956 P.2d 1199, 1203 (Alaska 1998)).
30 Mickelsen, 274 P.3d at 1199.
31 561 P.2d 731, 733–34 (Alaska 1977).
32 See, e.g., Mickelsen, 274 P.3d at 1202 (“Wendy’s had a duty under Webb to maintain
its property in a reasonably safe manner in view of all relevant circumstances”);
Schumacher v. City & Borough of Yakutat, 946 P.2d 1255, 1258 (Alaska 1997)
(“‘Dangerous condition’ refers to the physical condition of the property itself, not to
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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
activities on the property . . . .” (quoting 57 Am. Jur. 2d, Municipal, County, School and
State Tort Liability § 284 (1988))).
33 946 P.2d 1255, 1257 (Alaska 1997).
34 Id. at 1258.
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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
35 Mickelsen, 274 P.3d at 1200 (citing R.E. v. State, 878 P.2d 1341 (Alaska 1994); State
v. Sandsness, 72 P.3d 299 (Alaska 2003); Dore v. City of Fairbanks, 31 P.3d 788
(Alaska 2001)).
36 Id. at 1201.
37 Id.
38 293 P.3d 480, 488 (Alaska 2013).
39 Id.
40 Mickelsen, 274 P.3d at 1199; see also Rupp v. Wal-Mart Stores, Inc., No. 3:11-CV-
00052-JWS, 2012 WL 1951829, at *1 (D. Alaska May 30, 2012) (“Where there is no
controlling precedent on a question of state law, a district court ‘must predict how the
highest state court would decide the issue using intermediate appellate court decisions,
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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
decisions from other jurisdictions, statutes, treatises, and restatements as guidance.’”
(quoting Ariz. Elec., Power Coop. v. Berkeley, 59 F.3d 988, 991 (9th Cir. 1995))).
The D.S.W. public policy considerations 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.” D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628
P.2d 554, 555 (Alaska 1981).
41 Hurn v. Greenway, 293 P.3d 480, 486–87 (Alaska 2013).
42 Docket 25 at 4.
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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.
43 P.G. v. State, Dep’t of Health & Human Servs., Div. of Family & Youth Servs., 4 P.3d
326, 331 n.11 (Alaska 2000).
44 Docket 17 at 6 (quoting Phillips v. Equitable Life Assur. Co. of the U.S., 413 So. 2d
696, 698 (La. Ct. App. 1982)); see also Roberts v. Tiny Tim Thrifty Check, 367 So. 2d
64, 65 (La. Ct. App. 1979) (applying duty where store owner’s conduct, rather than
condition of property, was at issue).
45 P.G., 4 P.3d at 334 (emphasis omitted) (quoting Restatement (Second) of Torts
§ 435(2) (1965)).
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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
46 Id. As discussed in the following subsection, however, the precise nature of Mr.
McKitrick’s actions—and whether those actions breached a standard of care—are
questions of fact.
47 Mickelsen ex rel. Mickelsen v. N.-Wend Foods, Inc., 274 P.3d 1193, 1198 (Alaska
2012).
48 Id. at 1200 (citing Schumacher v. City & Borough of Yakutat, 946 P.2d 1255, 1257
(Alaska 1997); see also id. at 1199–1200 (“In Schumacher, a child was injured when he
collided with a car while sledding down a city-owned road. The city was aware that
children frequently sledded on the road and had taken no steps to reduce the danger.”
(citing Schumacher, 946 P.2d at 1256).
49 Id. at 1202 (“Wendy's had a duty under Webb to maintain its property in a reasonably
safe manner in view of all relevant circumstances.”).
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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
50 Docket 1-1 (Complaint) at 2, ¶¶ 6–10, 12; Docket 6 (Answer) at 2–4, ¶¶ 6–10, 12.
51 Additional D.S.W. factors also weigh in favor of a conclusion that the Alaska Supreme
Court would impose a duty here. See D.S.W. v. Fairbanks N. Star Borough Sch. Dist.,
628 P.2d 554, 555 (Alaska 1981). Ms. Fischer clearly suffered an injury. Furthermore,
as discussed further below, the alleged connection between Mr. McKitrick’s conduct and
Ms. Fischer’s injury is relatively close. Imposing a duty would also serve the policy of
preventing future harm. Only two of the D.S.W. factors—the moral blame attached to
the defendant’s conduct, and the availability, cost, and prevalence of insurance for the
risk involved—do not weigh clearly in favor of imposing the duty articulated above.
52 See Phillips v. Equitable Life Assur. Co., 413 So.2d 696, 698 (La. Ct. App. 1982).
53 Stewart v. Elliott, 239 P.3d 1236, 1239 (Alaska 2010).
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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
54 Docket 21-3 at 1, ¶¶ 21–23; Docket 17-2 at 3, ¶ 16.
55 Docket 1-1 (Complaint) at 2, ¶¶ 6–10; Docket 6 (Answer) at 2–4, ¶¶ 6–10. These
policies do not “provide a basis for a source of a legal duty.” Angnabooguk v. State, 26
P.3d 447, 452 n.18 (Alaska 2001) (citations omitted). They may, however, be
“admissible as evidence of a standard of care[.]” Estate of Day v. Willis, 897 P.2d 78, 81
n.7 (Alaska 1995).
56 Winschel v. Brown, 171 P.3d 142, 148 (Alaska 2007).
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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. Lentini62—in which courts found the
57 Docket 17 at 9–11; see City of Fairbanks v. Schaible, 375 P.2d 201, 204 (Alaska
1962), overruled in part on other grounds by Scheele v. City of Anchorage, 385 P.2d 582
(Alaska 1963) (“A mere possibility of causation is not enough. When the matter remains
one of conjecture, as it does here, the trial court must find against the party carrying the
burden of proof.”).
58 Cf. McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex. 1980) (“A
reasonable inference drawn from this evidence is that the shoplifters began to run as a
result of the unsuccessful arrest attempt, and ran like they did because they were being
closely pursued by Joske's security guards. While other inferences can be drawn, we
must accept that inference most favorable to the jury finding, and reject those
inferences to the contrary.”).
59 Docket 17 at 6–9.
60 See Alvey v. Pioneer Oilfield Servs., Inc., 648 P.2d 599, 600–01 (Alaska 1982)
(plaintiff injured while removing cover which rested atop a survey hole; contends that
design or construction of cover caused accident); Sharp v. Fairbanks N. Star Borough,
569 P.2d 178, 180–81 (Alaska 1977) (plaintiff injured in fire after parent takes boys away
from school wrestling tournament and instructs them to refuel automobile; contends that
school district’s conduct was substantial cause of plaintiff’s injury).
61 432 So.2d 968 (La. Ct. App. 1983).
62 650 So.2d 1031 (Fla. Dist. Ct. App. 1995) (per curiam).
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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.
63 Docket 17 at 11–12.
64 432 So.2d at 969.
65 650 So.2d at 1032.
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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
66 Docket 17 at 12 (capitalization omitted).
67 See Docket 21 at 7.
68 Docket 17-9 (Paulino v. Wal-Mart Stores, Inc., Case No. 3:14-cv-00128-TMB) at 2
(citing AS 09.17.080).
69 Docket 26-1 (Billing Records); Docket 26 at 2.
70 Docket 22-2 at 1.
71 See Docket 32 at 2 (tabulating Medicare adjustments). The Court need not
determine the precise amount of the differential to address the issue raised in Home
Depot’s motion.
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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
72 Docket 22 at 3.
73 Docket 26 at 4.
74 Docket 26 at 3.
A “collateral source” is compensation for a plaintiff’s damages received from a source
other than the tortfeasor. The common-law collateral source rule “prohibits the
reduction of a plaintiff's damages when he has received compensation from another
source.” Rupp v. Wal-Mart Stores, Inc., No. 3:11-CV-00052-JWS, 2012 WL 1951829, at
*1 (D. Alaska May 30, 2012) (quoting Tolan v. ERA Helicopters, Inc., 699 P.2d 1265,
1267 (Alaska 1985)). This rule “allows the victim a double recovery if the alternative
would be to allow the tortfeasor to escape liability.” Chenage Corp. v. Exxon Corp., 991
P.2d 769, 790–91 (Alaska 1999). However, AS 09.17.070 modifies the common-law
rule by allowing courts to reduce an injured party’s jury award to reflect unsubrogated
collateral source payments in some circumstances. The statute therefore limits the
circumstances in which a victim can receive a double recovery.
In relevant part, AS 09.17.070 provides as follows:
(a) After the fact finder has rendered an award to a claimant, and after the
court has awarded costs and attorney fees, a defendant may introduce
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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 medical
evidence of amounts received or to be received by the claimant as
compensation for the same injury from collateral sources that do not have
a right of subrogation by law or contract.
(b) If the defendant elects to introduce evidence under (a) of this section,
the claimant may introduce evidence of
(1) the amount that the actual attorney fees incurred by the claimant in
obtaining the award exceed the amount of attorney fees awarded to the
claimant by the court; and
(2) the amount that the claimant has paid or contributed to secure the right
to an insurance benefit introduced by the defendant as evidence.
(c) If the total amount of collateral benefits introduced as evidence under
(a) of this section exceeds the total amount that the claimant introduced as
evidence under (b) of this section, the court shall deduct from the total
award the amount by which the value of the nonsubrogated sum awarded
under (a) of this section exceeds the amount of payments under (b) of this
section.
Here, no entity has “a right of subrogation by law or contract” in the difference between
the medical expenses charged by the plaintiff’s providers and the rates accepted by
those providers.
75 __ P.3d __, S-16529, 2019 WL 3519685, at *1 (Alaska Aug. 2, 2019).
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services rendered.”76 	The trial court granted the motion, and the plaintiff filed a
petition for review. 	The Alaska Supreme Court noted that the petition presented
two issues:
First, was it error to exclude evidence of her full, undiscounted medical
bills after her medical care providers accepted less from Medicare as
payment in full? Second, if [the plaintiff’s] medical bills are admissible,
should the difference between those bills and what Medicare paid be
viewed as a benefit to [the plaintiff] from a collateral source—meaning
that evidence of it should be kept from the jury and presented only
after trial, when the court determines pursuant to AS 09.17.070
whether some or all of the collateral source benefits should reduce
the damages award?77
The Alaska Supreme Court answered both questions in the affirmative. The
court first held that it would “adopt[] the ‘reasonable value’ approach, in which an
injured party is allowed to introduce the full, undiscounted medical bills into
evidence at trial.”78 	It then held that “to the extent the negotiated rate differential
represents a collateral benefit for which the collateral source has no ‘right of
subrogation by law or contract,’ it is subject to the post-verdict procedure set out
in AS 09.17.070.”79
In light of the Alaska Supreme Court’s decision in Weston, at trial in this
matter, Ms. Fischer will be permitted to present evidence of the full amount of
76 Id. (quotations omitted).
77 Id. at *2.
78 Id. at *9.
79 Id. at *10 (quoting AS 09.17.070); see supra note 74.
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medical expenses charged by her providers. 	Then, following trial, Home Depot
will be permitted to assert that any damages awarded to Ms. Fischer are subject
to the post-verdict procedure set out in AS 09.17.040.
CONCLUSION
In light of the foregoing, IT IS ORDERED as follows:
Home Depot’s Motion for Summary Judgment and Alternative Motion for
Ruling that the Jury Be Allowed to Apportion Fault to the Unidentified Shoplifter at
Docket 17 is DENIED as to Home Depot’s request for summary judgment, and
GRANTED as to Home Depot’s request for a ruling that a jury be allowed to
apportion fault to the unidentified shoplifter.
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 at Docket 22 is
DENIED insofar as evidence of the full amount charged may be presented to the
jury, and GRANTED insofar as Home Depot may seek post-trial reduction of any
damages awarded by the jury pursuant to AS 09.17.040.
DATED this 30th day of August, 2019, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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