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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Powell v. Tanner (11/22/2002) sp-5644

Powell v. Tanner (11/22/2002) sp-5644

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


VICKY RAVIJOJLA POWELL,  )
                              )       Supreme   Court   Nos.   S-
10254/10264
             Petitioner,           )
                              )    Superior Court No.
     v.                       )    3AN-99-8250 CI
                              )
LAURA H. TANNER; HARCOURT     )    O P I N I O N
BRACE & COMPANY; and THE )
HERTZ CORPORATION,       )    [No. 5644 - November 22, 2002]
                              )
             Respondents.          )
________________________________)



          Petition  for Review from the Superior  Court
          of   the  State  of  Alaska,  Third  Judicial
          District, Anchorage, Rene J. Gonzalez, Judge.

          Appearances:  John R. White, The Law  Offices
          of  Jody  Brion,  Anchorage, for  Petitioner.
          Donald  C.  Thomas,  Delaney,  Wiles,  Hayes,
          Gerety,  Ellis & Young, Inc., Anchorage,  for
          Respondents.

          Before:   Fabe, Chief Justice, Matthews,  and
          Bryner,   Justices.  [Eastaugh and Carpeneti,
          Justices, not participating.]

          FABE, Chief Justice.


I.   INTRODUCTION

          These consolidated petitions for review arise out of an

automobile  accident which occurred when Laura H. Tanner  changed

lanes  and  her automobile collided with Vicky Ravijojla  Powells

automobile.   Tanner  was  driving a Hertz  rental  car  and  was

working  for  Harcourt Brace & Co. at the time of  the  accident.

The  trial  court  granted  summary judgment  dismissing  Powells

vicarious  liability claims against Harcourt.   The  trial  court

also  struck  thirty-seven witnesses from Powells  final  witness

list who had not been named as witnesses until after the close of

discovery.   Because there is a genuine issue  of  material  fact

regarding whether Tanner is a Harcourt employee, making  Harcourt

potentially  vicariously  liable  for  Tanners  actions,  summary

judgment  was  improperly  granted  in  favor  of  Harcourt.   In

addition,  because any immediacy which required striking  thirty-

seven  of Powells witnesses no longer exists, we need not address

whether  the  order striking Powells witnesses was  an  abuse  of

discretion.

II.  FACTUAL HISTORY

          Tanner began working for Harcourt, a publishing company

that  publishes and sells educational materials, after responding

to  an  advertisement  placed  by  Harcourt  stating  educational

publisher  needs  teacher.  Tanner worked for Harcourt  from  the

summer  of 1996 to the summer of 1998.  On March 1, 1997,  Tanner

signed  Harcourts Per Diem Agreement for Independent  Contractors

which specified that Tanner had been engaged, on a per diem basis

[at $125 per day], for no more than 16 days . . . [to] sell[] all

Harcourt Brace School Publishers programs in the state of Hawaii.1

          In  August  1997  Tanner came to Anchorage  to  conduct

demonstrations  of  educational  materials  for  Harcourt  at  an

Anchorage  School  District  in-service  for  teachers.    Tanner

arrived in Anchorage on August 20, 1997, the day of the accident,

and  checked into her hotel.  Tanner picked up a rental car  from

Hertz  and  drove to a storage facility to retrieve the  Harcourt

materials  she  needed for her presentation  the  following  day.

          While driving back to the hotel, Tanner attempted to change lanes

and  Powell  and  Tanners  vehicles collided,  allegedly  causing

injuries to Powells person and automobile.

III. DISCUSSION

     A.   The  Superior  Court Erred in Granting Partial  Summary
          Judgment to Harcourt.
          
          1.   Procedural history relating to summary judgment
               
          Powell  brought  suit  against  Tanner,  Harcourt,  and

Hertz,   alleging   that  Harcourt  and  Hertz  are   vicariously

responsible  for defendant Tanners acts and omissions  under  the

theories   of  respondeat  superior,  agency,  joint  enterprise,

negligence,  negligent  entrustment, and  negligent  supervision.

Powell  further alleged in the complaint that the accident caused

severe  injuries  to her neck, head, back, arms, knees,  bladder,

abdomen,  ribs, and face, as well as damage to her  vehicle.   In

the  answer, Harcourt admitted that Tanner was in the course  and

scope  of her contract with Harcourt at the time of the accident,

and  that Harcourt paid for the rental of the vehicle Tanner  was

driving.

          Harcourt  and Hertz moved for partial summary judgment,

seeking to dismiss all claims against them.  Harcourt argued that

Tanner  was an independent contractor at the time of the accident

and  so  Harcourt  could not be vicariously  liable  for  Tanners

actions under the independent contractor rule.

          After  considering the motion for summary judgment  and

Powells  opposition,  the superior court  summarily  granted  the

motion  for  summary  judgment in favor of  Harcourt  and  Hertz,

dismissing   all   claims  against  them.   The  superior   court

subsequently   denied  Powells  motion  to  reconsider.    Powell

petitioned this court to review the summary judgment order.   She

did not seek review of the courts order dismissing all of Powells

claims against Hertz.  We granted Powells petition.

          2.   Standard of review relating to motion for  summary

               judgment

          We review a grant of summary judgment de novo and adopt

the  rule  of law that is most persuasive in light of  precedent,

reason,  and  policy.2   To obtain summary judgment,  the  moving

party must prove the absence of a genuine factual dispute and its

entitlement  to  judgment as a matter of  law.3   All  reasonable

inferences of fact are drawn in favor of the nonmoving party.4

          Because  characterization of the  relationship  between

Harcourt and Tanner is ordinarily an issue for the trier of fact,

the  burden is initially on Harcourt to affirmatively demonstrate

that  Tanner  was  an  independent  contractor  rather  than   an

employee.5   If  Harcourt makes this prima facie showing,  Powell

must  then  establish  facts  from which  it  reasonably  may  be

inferred  that  Tanner was an employee.6  In other words,  Powell

must  prove  that a genuine issue of fact exists by showing  that

she can produce admissible evidence reasonably tending to dispute

Harcourts evidence.7

          3.   There  is  a  factual  dispute  regarding  whether
               Tanner  was  Harcourts servant or its  independent
               contractor.
               
          Under  the doctrine of respondeat superior, an employer

is  liable  for the negligent acts or omissions of  his  employee

committed  within  the  scope of his employment.8   Harcourt  has

admitted  that Tanner was in the course and scope of her contract

with Harcourt at the time of the accident, and that Harcourt paid

for  the rental of the vehicle Tanner was driving.  However,  the

parties  dispute whether Tanner was an independent contractor  or

an  employee.  Under the independent contractor rule the doctrine

of  respondeat  superior does not apply to  acts  of  independent

contractors: Because such an employer normally does  not  control

the work of the independent contractor, he is not held liable for

the torts of the contractor and its employees.9

          An  independent contractor is any person who does  work

for another under conditions which are not sufficient to make him

a  servant  of  the  other.10  We have employed  the  Restatement

(Second)  of Agency  220(2) (1958) factors defining a servant  to

determine the nature of the relationship between a worker and  an

          employer:11

          (1)   A  servant  is  a  person  employed  to
          perform  services in the affairs  of  another
          and  who with respect to the physical conduct
          in the performance of the services is subject
          to the others control or right to control.
          
          (2)   In  determining whether one acting  for
          another   is  a  servant  or  an  independent
          contractor,  the following matters  of  fact,
          among others, are considered:
          
          (a)   the  extent of control  which,  by  the
          agreement, the master may exercise  over  the
          details of the work;
          
          (b)   whether  or  not the  one  employed  is
          engaged in a distinct occupation or business;
          
          (c)   the  kind of occupation, with reference
          to  whether,  in the locality,  the  work  is
          usually  done  under  the  direction  of  the
          employer   or   by   a   specialist   without
          supervision;
          
          (d)   the  skill  required in the  particular
          occupation;
          
          (e)   whether  the employer  or  the  workman
          supplies  the instrumentalities,  tools,  and
          the  place  of work for the person doing  the
          work;
          
          (f)   the length of time for which the person
          is employed;
          
          (g)   the method of payment, whether  by  the
          time or by the job;
          
          (h)  whether or not the work is a part of the
          regular business of the employer;
          
          (i)   whether or not the parties believe they
          are  creating  the  relation  of  master  and
          servant; and
          
          (j)   whether the principal is or is  not  in
          business.[12]
          
          We   have  used  the  language  of  comment  c  to  the

Restatement  (Second) of Agency  220 to describe  the  degree  of

control  required under Restatement (Second) of Agency  220(2)(a)

to impose vicarious liability:

          It  is  not  enough that [the  employer]  has
          merely  a  general right to  order  the  work
          stopped  or resumed, to inspect its  progress
          or to receive reports, to make suggestions or
          recommendations which need not necessarily be
          followed,  or  to  prescribe alterations  and
          deviations.  Such a general right is  usually
          reserved  to employers, but it does not  mean
          that  the contractor is controlled as to  his
          methods  of work, or as to operative  detail.
          There must be such a retention of a right  of
          supervision  that  the  contractor   is   not
          entirely  free  to do the  work  in  his  own
          way.[13]
          
Harcourt  exercised control over some aspects  of  Tanners  work.

But  because  the  evidence leads to no clear conclusion  whether

Tanner is, or is not, an employee of Harcourt, it is for the jury

to decide the nature of their employment relationship.14

          On  one hand, Harcourt controlled where Tanner held her

in-service  demonstrations and the type  of  administrative  work

that  she  performed.   Harcourt paid  for  Tanner  to  attend  a

training  session on its materials and suggested that  she  dress

professionally  for the job.  Harcourt provided Tanner  with  the

names   of   the  schools  where  she  was  to  make   in-service

presentations, and provided her with specific material for use at

her presentations, including training outlines.  Sasha Hedona,  a

Harcourt  sales representative, scheduled some of the in-services

where  Tanner made presentations, while other times Tanner  would

call and schedule in-services for times which were convenient for

her.   Hedona  attended  some, but not  all,  of  the  in-service

demonstrations  that  Tanner performed in Anchorage,  but  Tanner

often   did  not  know  which  demonstrations  Hedona  would   be

attending.   Harcourt also directed Tanner to reserve her  flight

to  Alaska  through Harcourts travel agent and Harcourt  directly

paid for Tanners flight and car rental.

          On  the  other hand, in her affidavit, Tanner indicated

that  for  her  work in Anchorage, she re-worked an  outline  and

determined how to present the Harcourt Brace training material to

the  teachers [she] instructed.  In making presentations,  Tanner

used  her  own  overheads or used ones she  received  from  other

people  and  there  were no scripts which  she  was  required  to

          follow.  She testified that [h]ow I presented [Harcourts]

materials  was up to me.  She could refuse assignments  she  felt

were   outside  of  her  expertise,  and  she  could   reschedule

presentations.  Tanner stated in her deposition that Hedona wasnt

a  supervisor in the traditional sense . . . . [S]he wasnt always

aware  of exactly what I was doing.  She didnt totally keep  tabs

on every detail . . . .  In sum, there is a factual dispute as to

whether  Harcourt exercised sufficient control over Tanners  work

to make Tanner a servant.

          There is also a factual dispute as to whether the other

Restatement   220(2) factors indicate that Tanner is an  employee

or   an  independent  contractor.   For  example,  a  jury  could

reasonably  conclude that Tanner generally works  as  a  teacher,

which is distinct from Harcourts educational publishing business.15

Tanner responded to an advertisement in the education section  of

the  newspaper that said educational publisher needs teacher, and

Powell  acknowledges  that  Tanner is a  teacher  by  profession.

However, a jury also could reasonably conclude that Tanners  work

in  demonstrating Harcourts educational materials to teachers  is

not  sufficiently distinct from Harcourts principal  business  of

selling educational materials, since Tanners demonstrations could

be considered essential to achieving sales.  Indeed, the per diem

contract  between the parties indicates that Tanner was hired  to

sell[ ] all Harcourt Brace School Publishers programs . . . .

          A  jury  also could reasonably conclude that,  although

Tanner  reworked  some  of her outlines,  Harcourt  supplies  the

instrumentalities  [and] tools for Tanner by providing  her  with

its  sample educational materials, which she was required to show

to the teachers at her presentations, and with outlines which she

could use for her presentations.16  In addition, Tanners per diem

contract indicates that Harcourt Brace will own any materials  or

other   contributions   prepared  by  you,  including   copyright

throughout  the  world,  as work-made-for-hire.17   In  addition,

Harcourt  arguably provided Tanner with the place  of  work18  by

          telling her which schools needed in-service presentations.

          There  is  also a factual dispute as to whether  Tanner

was  paid by the time rather than by the job.19  She earned  $125

per  day for her work in Anchorage.  But Harcourt argues that the

facts  clearly suggest that a demonstration would not  take  more

than  a  day.   In  effect,  Tanner was paid  per  demonstration.

Whether the facts do, in fact, indicate that Harcourt effectively

paid  Tanner by the job is an issue for the jury.  The  jury  may

also consider the evidence that Tanner did not receive a W-2 form

from  Harcourt.  Rather, she received an IRS 1099 form  and  paid

self-employment tax on the $9,000 to $10,000 she earned from  her

work for Harcourt in 1997.  How much weight to give the method-of-

payment  factor against other factors also is an  issue  for  the

factfinder.20

          The  record  indicates that there is a factual  dispute

over  whether Tanner and Harcourt believe[d] they [were] creating

the  relation  of  master  and servant.21   The  only  employment

contract  in  the record is the independent contractor  contract,

and Tanner has repeatedly asserted that she considered herself to

be an independent contractor when she did work for Harcourt.  She

also  states  that  although she was representing  Harcourt  when

making  presentations, she didnt have authority to speak for  the

company.  But Powell argues that Harcourts and Tanners statements

that  she  was  doing work for Harcourt Brace and  that  she  was

acting  within  the scope of her employment at the  time  of  the

accident  indicate  that  she believed she  was  an  employee  of

Harcourt.  However, the fact that Tanner admitted to working  for

Harcourt   says  nothing  about  the  nature  of  their   working

relationship.22

          More  relevant is Powells argument that the independent

contractor  per diem contract does not apply to Tanners  work  in

Alaska.  Tanners March 1, 1997 Per Diem Agreement for Independent

Contractors provided that Tanner had been engaged, on a per  diem

basis  [at $125 per hour], for no more than 16 days .  .  .  [to]

          sell[ ] all Harcourt Brace School Publishers programs in the

state of Hawaii.  The plain language of this contract covers only

sales  of  Harcourt programs in Hawaii.  Thus, a jury  reasonably

could  infer  that  the  contract does not cover  the  in-service

presentations that Tanner conducted in Alaska.23

          In  sum, the application of Restatement  220(2) factors

(a),  (b), (e), (g), and (i) to the facts of this case  does  not

permit the court to resolve on summary judgment whether there is,

or  is  not,  a master and servant relation.24  Harcourt  offered

prima facie evidence that it exercised insufficient control  over

Tanner  to create an employer-employee relationship and that  the

other Restatement factors indicate that Tanner was an independent

contractor.   Powell also satisfied her burden that  there  is  a

genuine issue of material fact by providing evidence from which a

jury  reasonably  could  infer that  Tanner  was  an  employee.25

Therefore,  we reverse the trial courts partial summary  judgment

in  favor  of Harcourt.26  On remand, the jury must consider  the

evidence relating to each of the factors and decide how to  weigh

the factors in determining the nature of the working relationship

between Harcourt and Tanner.27

     B.   The Striking of Thirty-Seven of Powells Witnesses

          1.   Procedural  history relating to motion  to  strike

               witnesses

          On  March 8, 2000, the parties held a planning  meeting

and  agreed on a scheduling order setting trial for June 4, 2001.

They  agreed to provide each other with preliminary witness lists

by  June 8, 2000, to complete discovery by February 28, 2001, and

to exchange final witness lists by April 4, 2001.

          In Powells initial disclosures dated November 25, 1999,

she provided the factual basis for her claims against Tanner, and

identified  twenty-three witnesses, including eighteen  witnesses

who would testify as to the nature of the injury, its relation to

the  accident, that it may cause permanent problems, and that  it

will  limit  Ms.  Powells  activities, work,  and  his  [or  her]

          treatment of the same.  In her response to interrogatories on

March 31, 2000, Powell listed medical bills from more than twenty

medical centers and doctors, and stated that future medical bills

would be incurred for problems relating to her knee and bladder.

          On  June  7,  2000, Powell timely filed her preliminary

witness  list, naming twenty-five witnesses.  On March 14,  2001,

Powell  supplemented  her  preliminary  witness  list  with   one

additional witness.  In her final witness list, timely  filed  on

April  4,  2001,  Powell listed sixty-eight witnesses,  including

thirty-eight witnesses who had not been named in her  preliminary

witness list or initial disclosures.

          On  April  9,  2001, Harcourt moved to strike  the  new

witnesses, arguing that Powell could have identified them at  the

moment  the  lawsuit  was  filed,  and  that  Harcourt  would  be

prejudiced by the addition of these new witnesses because it  did

not have time to interview them in the two months before trial.28

Powell  responded that the new witnesses were necessary to  rebut

allegations that Powell was not injured in the accident and  that

her  hotel project, for which she claims financial loss, was  not

fully  in effect at the time of the accident.  She further argued

that  the  names  of all of the new witnesses  were  revealed  to

Harcourt  through discovery.  On May 31, 2001,  the  trial  court

summarily  granted  Harcourts motion and struck  thirty-eight  of

Powells new witnesses.

          Powell  filed a motion for reconsideration,  describing

the  nature of the testimony to be given by each witness and  how

their  identities were disclosed to Harcourt in  discovery.   The

trial  court  denied reconsideration in part, ruling that  Powell

may  only  supplement her witness [list] with Dr. Leon  Chandler,

whom she has identified as her current treating physician.

          Powell petitioned for review of the trial courts orders

striking  certain of her witnesses and entering  partial  summary

judgment against her.  We granted this  petition as well  as  the

petition challenging summary judgment and consolidated them.

          2.   Standard  of  review relating  to  order  striking

               witnesses

          Powell  argues that the trial court erred  in  striking

her   witnesses  because  there  is  no  evidence   of    willful

noncompliance  with  court orders, or extreme  circumstances,  or

gross  violations.   The choice of a particular  sanction  for  a

discovery violation generally is a matter committed to the  broad

discretion of the trial court, subject only to review  for  abuse

of  discretion.29  Because the courts striking of thirty-seven of

Powells witnesses does not establish the outcome of this case  or

end  the litigation, we need not determine whether the order  was

justified  because  of willful noncompliance with  court  orders,

extreme circumstances, or gross violations of the Rules, nor must

we determine whether the trial court explored alternatives to the

sanction.30

          3.   We  need not decide whether the trial court abused
               its   discretion  by  striking  witnesses  because
               Powells  failure to supplement her  disclosure  no
               longer prejudices Harcourt and Tanner.
               
          Powell  argues  that because there was no  evidence  of

prejudice, noncompliance with a court order, or bad faith, it was

error  for  the trial court to strike 37 witnesses  from  Powells

final  witness list.31  Harcourt argues that Powell violated  the

courts  pre-trial  order  for  the parties  to  file  preliminary

witness  lists and to supplement their initial disclosures  every

thirty days until discovery closed.

          Alaska  Rule  of  Civil Procedure 26(a)(3)(A)  requires

parties  to  identify each witness, separately identifying  those

whom  the  party expects to present and those whom the party  may

call if the need arises.  Alaska Rule of Civil Procedure 26(e)(1)

provides that after making initial disclosures under Rule 26(a)

          [a] party . . . is under a duty to supplement
          or  correct  the  disclosure or  response  to
          include  information thereafter  acquired  if
          ordered  by the court or . . . if  the  party
          learns  that  in  some material  respect  the
          information   disclosed  is   incomplete   or
          incorrect and if the additional or corrective
          information has not otherwise been made known
          to  the  other  parties during the  discovery
          process or in writing.
          
Sanctions for noncompliance with these provisions are governed by

Alaska Rule of Civil Procedure 37(c)(1):

          A     party    that    without    substantial
          justification  fails to disclose  information
          required by Rule 26(a), 26(e)(1), or  26.1(b)
          shall  not, unless such failure is  harmless,
          be  permitted to use as evidence at a  trial,
          at  a hearing, or on a motion any witness  or
          information not so disclosed.
          
          Powell  complied  with Rule 26(a) by providing  initial

disclosures and she complied with the scheduling orders deadlines

for  filing  preliminary and final witness  lists.   Complicating

this  case  is  an  anomalous provision in the  scheduling  order

requiring  the  parties to file their final witness  lists  after

discovery  closed.  The scheduling orders sequencing of deadlines

created  a   potential conflict over an opposing partys inability

to  depose  witnesses identified for the first time in the  final

witness  list without violating the close of discovery  deadline.

Nothing  in the scheduling order limited the number of  witnesses

the parties could call or otherwise addressed how to resolve this

foreseeable dispute.

          On  the  other  hand, Powells failure to  identify  the

thirty-seven  additional witnesses before the close of  discovery

may  have  been prejudicial at the time, given the  looming  June

2001  trial date.32  However, because we reverse the trial courts

order granting summary judgment, a new trial date must be set and

discovery will likely be reopened.  We therefore need not address

whether  the trial court abused its discretion because  any  time

pressures  that  existed  in spring  2001  no  longer  exist  and

Harcourt   will  now  have  time  to  depose  Powells  additional

witnesses.  Powells failure to supplement her disclosures will no

longer prejudice Harcourt and Tanner.33

IV.  CONCLUSION

          Reasonable  minds  could  differ  as  to  whether   the

          Restatement (Second) of Agency  220(2) factors indicate that

Tanner   was   an   employee   or  an   independent   contractor.

Accordingly,  we  REVERSE  the order  granting  Harcourt  partial

summary  judgment.   We also REVERSE the order  striking  thirty-

seven  of  Powells  witnesses because Powell  complied  with  the

scheduling  order  deadline,  and her  failure  to  identify  the

additional  witnesses will not prejudice Harcourt and  Tanner  in

light of our decision to remand the case for trial.

_______________________________
     1     Tanner  also  had  an hourly contract  with  Harcourt,
entered   into  on  May  1,  1997,  under  which  she   performed
administrative work for Harcourt, such as contacting  schools  to
see  if  they  were interested in receiving samples of  Harcourts
materials and setting up a database.

     2     State  v. Alaska Civil Liberties Union, 978 P.2d  597,
603  (Alaska  1999);  Cool Homes, Inc. v.  Fairbanks  North  Star
Borough, 860 P.2d 1248, 1254 (Alaska 1993).

     3    Alaska Civil Liberties Union, 978 P.2d at 603.

     4    McGlothlin v. Municipality of Anchorage, 991 P.2d 1273,
1277 (Alaska 1999).

     5    See Sterud v. Chugach Elec. Assn, 640 P.2d 823, 827 n.8
(Alaska 1982).

     6    See id.

     7     See Lincoln v. Interior Regl Hous. Auth., 30 P.3d 582,
586 (Alaska 2001).

     8     Luth v. Rogers & Babler Constr. Co., 507 P.2d 761, 762
(Alaska 1973); see also Prosser and keeton on Torts  70, at  501-
03 (5th ed. 1984).

     9     Parker  Drilling  Co. v. ONeill,  674  P.2d  770,  775
(Alaska  1983).  For purposes of determining whether Harcourt  is
vicariously  liable  under a theory of  respondeat  superior,  we
assume  that Tanner was negligent.  See Sterud, 640 P.2d  at  825
(For  purposes of this [vicarious liability/respondeat  superior]
theory, the negligence of Hansen or Smith is assumed.).

     10     Restatement (Second) of Torts  409 cmt. a;  see  also
Soderback  v.  Townsend, 644 P.2d 640, 641 (Or.  App.  1982)  (An
independent contractor, as distinguished from a mere employee, is
one  who, carrying on an independent business, contracts to do  a
piece  of  work  according to his own methods, and without  being
subject  to the control of his employer as to the means by  which
the  result is to be accomplished, but only as to the  result  of
the work.) (citation omitted).

     11    Sterud, 640 P.2d at 826.

     12     See also Community for Creative Non-Violence v. Reid,
490 U.S. 730, 751-52 (1989) (In determining whether a hired party
is  an  employee  under  the general common  law  of  agency,  we
consider the hiring partys right to control the manner and  means
by  which  the product is accomplished.  Among the other  factors
relevant  to this inquiry are the skill required; the  source  of
the  instrumentalities and tools; the location of the  work;  the
duration  of  the relationship between the parties;  whether  the
hiring  party has the right to assign additional projects to  the
hired party; the extent of the hired partys discretion over  when
and  how  long  to work; the method of payment; the hired  partys
role in hiring and paying assistants; whether the work is part of
the  regular  business of the hiring party;  whether  the  hiring
party  is  in business; the provision of employee benefits;   and
the tax treatment of the hired party.) (citations omitted).

     13     Hammond v. Bechtel, Inc., 606 P.2d 1269, 1275 (Alaska
1980);  see also Restatement (Second) of Torts  414 cmt. a (1965)
(If  the  employer of an independent contractor  retains  control
over  the operative detail of doing any part of the work,  he  is
subject to liability for the negligence of the employees  of  the
contractor engaged therein, under the rules of that part  of  the
law  of  Agency  which  deals with the  relation  of  master  and
servant.).

     14     See  Sterud,  640  P.2d at 826  (quoting  Restatement
(Second)  of Agency  220(1) cmt. c (1958)) (providing that  while
the existence or nonexistence of a master-servant relationship is
ordinarily  a  jury question, [i]f the inference  is  clear  that
there is, or is not, a master and servant relation, it is made by
the court).

     15    See Restatement (Second) of Agency  220(2)(b) (1958).

     16    Restatement (Second) of Agency  220(2)(e) (1958).

     17     The fact that Harcourt owns the materials that Tanner
creates  would  seem  to indicate that she is Harcourts  servant.
See  Restatement (Second) of Agency  220(2) cmt.  k  (1958)  (The
fact  that a worker supplies his own tools is some evidence  that
he  is  not a servant.  On the other hand, if the worker is using
his  employers tools or instrumentalities, especially if they are
of  substantial  value, it is normally understood  that  he  will
follow  the  directions  of the owner  in  their  use,  and  this
indicates  that  the  owner is a master.).  However,  the  United
States  Supreme  Court has made clear that a work  for  hire  can
arise  through  one  of  two mutually exclusive  means,  one  for
employees  and  one for independent contractors.   Community  for
Creative Non-Violence, 490 U.S. at 743.

     18    Restatement (Second) of Agency  220(2)(e) (1958).

     19    Restatement (Second) of Agency  220(2)(g) (1958).

     20     At  least  one court has held that  a  worker  is  an
independent  contractor in spite of evidence that the  worker  is
paid  on  a per diem basis.  See Soderback v. Townsend, 644  P.2d
640,  642 (Or. App. 1982) (holding that broker was an independent
contractor, despite undisputed evidence that he was  paid  a  per
diem of $175 plus expenses).

     21    Restatement (Second) of Agency  220(2)(i) (1958).

     22    See Soderback, 644 P.2d at 643 (That Townsend may have
represented  himself as working for Quasar did  not  present  any
evidence to dispute Quasars evidence on its lack of any right  to
control  the means whereby Townsend accomplished his mission  for
Quasar.).

     23     Furthermore, the record suggests that Tanner may have
already  exceeded the sixteen days of work authorized  under  the
contract.  Tanner explained that between March 1, 1997 and August
20,  1997,  the  day of the accident, she had  worked  less  than
twenty  days  under that contract.  However, in  her  deposition,
Tanner  stated  that she had done approximately ten presentations
for Harcourt before the day of the accident.

     24     See  Restatement (Second) of Agency  220(1),  cmt.  c
(providing  that  although the existence  or  nonexistence  of  a
master-servant  relationship is ordinarily a jury question,  [i]f
the  inference is clear that there is, or is not,  a  master  and
servant  relation, it is made by the court.); see also  Community
for  Creative  Non-Violence v. Reid, 490 U.S. 730, 752-53  (1989)
(holding that sculptor was an independent contractor because Reid
is  a  sculptor,  a  skilled occupation.  Reid supplied  his  own
tools.   He  worked in his own studio in Baltimore, making  daily
supervision   of  his  activities  from  Washington   practicably
impossible.   Reid  was  retained for less  than  two  months,  a
relatively  short  period of time.  During and after  this  time,
CCNV  had no right to assign additional projects to Reid.   Apart
from the deadline for completing the sculpture, Reid had absolute
freedom  to  decide when and how long to work.   CCNV  paid  Reid
$15,000,  a  sum  dependent on completion of a  specific  job,  a
method  by  which independent contractors are often  compensated.
Reid  had  total  discretion  in hiring  and  paying  assistants.
Creating  sculptures  was  hardly  regular  business  for   CCNV.
Indeed, CCNV is not a business at all.  Finally, CCNV did not pay
payroll  or Social Security taxes, provide any employee benefits,
or  contribute to unemployment insurance or workers  compensation
funds.) (citations omitted).

     25    See Sterud v. Chugach Elec. Assn, 640 P.2d 823, 826-27
n.8 (Alaska 1982) (affirming judgment in favor of the employer as
a  matter  of  law based on affidavits submitted by the  employer
that  indicated that it had no control over the manner and  means
by   which  construction  by  the  contractor/labor  broker   was
performed, and the injured party offered no evidence to  indicate
that  the  employer retained control over details  of  the  labor
involved in the construction:  The mere fact that the question as
to whether a particular relationship is that of master-servant or
employer-independent contractor is ordinarily a factual one  does
not  mean that it cannot be decided by the court on a motion  for
summary judgment, where the moving party meets its burden and the
nonmoving party does not adequately respond.).

     26     Powell appears to argue that even if Tanner could  be
considered  an  independent contractor, Harcourt  is  vicariously
liable  for the accident because Tanner is an agent of  Harcourt.
However,  the critical inquiry in determining vicarious liability
is  whether  a  master-servant relationship exists;  evidence  of
agency,  alone,  is  insufficient to impose vicarious  liability.
See  Norris  v. Sackett, 665 P.2d 1262, 1262-63 (Or.  App.  1983)
(holding  that a corporations liability could not be  established
merely by showing that the motor vehicle operator was an agent of
the  corporation;  the  corporation must have  been  the  workers
master  and  must have had a right to control its  servant  while
carrying  out  a task for the corporations benefit);  Restatement
(Second)  of Agency  250, cmt. a (It is only when to the relation
of  principal  and  agent there is added that  right  to  control
physical  details  as  to  the manner  of  performance  which  is
characteristic  of the relation of master and  servant  that  the
person  in  whose  service  the act is done  becomes  subject  to
liability for the physical conduct of the actor.).

          Powell  also  asserts that the case law  cited  by  the
respondents  does not deal with a company being  responsible  for
acts  of  an agent against third[]parties.  However, neither  the
Restatement  nor  any decision by this court  indicates  that  an
employer may be vicariously liable when an independent contractor
injures  a  third party.  Thus, the fact that a third  party  was
injured in this case is irrelevant.

     27     Restatement (Second) of Agency  220(1)  cmt.  c  (The
relation  of  master  and servant is one  not  capable  of  exact
definition. . . .  The factors stated in Subsection (2)  are  all
considered in determining the question, and it is for the  triers
of  fact to determine whether or not there is a sufficient  group
of  favorable  factors  to  establish  the  relation.)  (citation
omitted).

     28     On  May  2, 2001, the superior court granted  Powells
attorneys  motions to withdraw from the case and to continue  the
June  4,  2001  trial.  However, the trial court did  not  reopen
discovery.

     29    Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169
(Alaska 1998).

     30     See id. at 1169-70 ([T]he trial courts discretion  is
limited  when the effect of the sanction it selects is to  impose
liability  on  the offending party, establish the outcome  of  or
preclude  evidence  on  a central issue, or  end  the  litigation
entirely.  Before extreme sanctions of this kind may properly  be
imposed,  there must be willful noncompliance with court  orders,
or  extreme circumstances, or gross violations of the Rules.  The
record  must  also clearly indicate a reasonable  exploration  of
possible  and meaningful alternatives to dismissal.  .  .  .   If
meaningful  alternative sanctions are available, the trial  court
must   ordinarily  impose  these  lesser  sanctions.)  (citations
omitted).

     31     The  trial  court  initially struck  thirty-eight  of
Powells  new witnesses, but upon reconsideration, it allowed  one
of  the  thirty-eight  witnesses to be  added  to  Powells  final
witness list.  Thus, only thirty-seven witnesses were struck.

     32     But  see  Sigala  v. Spikouris,  2002  WL  721078,  3
(E.D.N.Y. 2002) (rejecting the defendants argument that it should
be permitted to depose all witnesses listed on plaintiffs witness
list  because the argument finds no support in the Federal  Rules
of Civil Procedure).

     33    Note that our decision does not preclude Harcourt from
seeking an order compelling Powell to furnish a list of witnesses
she  actually intends to call at trial.  Cf. Matter of  Long,  34
B.R.  85, 87 (Bankr. M.D. Fla. 1983) ([I]t is quite obvious  that
it  is  absurd to bombard a litigant with a list of  an  army  of
prospective  witnesses  without specifying  which  of  them  will
actually  testify.   In such a situation, the litigant  is  faced
with  two  choices,  both of them unfair.  He  either  takes  the
chance and guesses which of them will actually testify and depose
them  or  not  to  take  this chance and depose  all  of  them.).
Neither  does  our  decision preclude  Harcourt  from  moving  to
exclude  the  testimony of any of Powells witnesses under  Alaska
Rule  of  Evidence  403.   See  Alaska  R.  Evid.  403  (Although
relevant,  evidence  may be excluded if its  probative  value  is
outweighed  by the danger of unfair prejudice, confusion  of  the
issues,  or  misleading the jury, or by considerations  of  undue
delay,  waste  of  time, or needless presentation  of  cumulative
evidence.).