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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.).
