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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Anderson v. PPCT Management Systems, Inc. (10/06/2006) sp-6058

Anderson v. PPCT Management Systems, Inc. (10/06/2006) sp-6058, 145 P3d 503

     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

DEBORAH J. ANDERSON, )
) Supreme Court No. S-11766
Appellant, )
) Superior Court No.
v. ) 3AN-02-14199 CI
)
PPCT MANAGEMENT SYSTEMS, INC., ) O P I N I O N
)
Appellee. ) No. 6058 - October 6, 2006
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  Thomas S. Gingras, Jonathan  E.
          Iversen,   Eide,   Miller   &   Pate,   P.C.,
          Anchorage,  for  Appellant.   Joanne   Thomas
          Blackburn,  David  S.  Cottnair,  Forsberg  &
          Umlauf, P.S., Seattle, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          MATTHEWS, Justice.

I.   INTRODUCTION
          A  state  employee sued Pressure Point Control  Tactics
Management  Systems,  Inc., (PPCT) under  theories  of  vicarious
liability, retained control, and negligence for injuries incurred
during  a  training program designed by PPCT and taught by  PPCT-
certified  state employees.  We affirm the superior courts  award
of summary judgment to PPCT on the retained control and vicarious
liability  claims because we conclude that PPCT  did  not  retain
control  over  the instructors and the instructors  were  neither
servants  nor  agents  of PPCT.  We reverse the  superior  courts
award of summary judgment to PPCT on the negligence claim because
we  conclude  that  PPCT  had a duty of care  in  developing  and
implementing its training program.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Deborah   Anderson  attended  the   State   of   Alaska
Department of Corrections (DOC) training academy from November  5
to December 14, 2001.  One week of this six-week program, officer
safety  week,  students  were trained in use-of-force  techniques
through  a  program developed by PPCT.  PPCT designs use-of-force
programs that provide criminal justice agencies with (1) a system
for  training  employees,  (2) a model  use-of-force  policy  and
report forms, and (3) litigation assistance.
          The first thirty-two hours of officer safety week teach
PPCT  techniques  and  the  last eight hours  provide  simulation
training.   Anderson alleges that she was injured as a result  of
the  use of excessive force during a simulation training exercise
with  PPCT-certified  instructor Regina McLain.   We  assume  for
purposes  of  review  that  Anderson  was  injured  during   PPCT
training.1   Both  PPCT and non-PPCT techniques are  used  during
simulation training.
          PPCT does not conduct PPCT training programs.  Instead,
agencies  send  employees  to  a  five-day  program  where   PPCT
instructor trainers train employees to be PPCT instructors.  Once
an agency employee is certified as an instructor, she may conduct
training  to  certify  other agency employees  in  PPCT  methods.
Agencies   may  also  have  employees  certified  as   instructor
trainers,   enabling   them  to  certify   other   employees   as
instructors.   Michael  Addington was the officer  in  charge  of
training  on  the  day  Anderson  was  injured.   Addington   was
certified  as  both  a  PPCT instructor  and  a  PPCT  instructor
trainer.
          PPCT  uses three sequences of practice: static,  fluid,
and  dynamic.   Static training moves in slow motion  and  breaks
down  the  components of a technique.  Fluid training  occurs  at
fifty  percent  or less of full speed and is the level  at  which
students  perform  the most repetitions of a technique.   Dynamic
training  is  full-speed  role playing.  PPCT  does  not  require
dynamic training for certification.
          Instructor  trainers must sign an agreement with  PPCT.
The  agreement requires instructor trainers to teach PPCT tactics
in  an unmodified form and to follow all PPCT procedures for  the
certification  of  instructors.  The agreement also  states  that
[t]he  INSTRUCTOR TRAINER is a representative of [PPCT] and  will
act professionally and ethically with all matters relating to Use
of  Force training. . . .  The INSTRUCTOR TRAINER agrees to  wear
PPCT  Instructor jerseys, or the logo of the INSTRUCTOR  TRAINERS
agency  or  academy.   But  [t]he INSTRUCTOR  TRAINER  shall  not
represent himself as an agent or employee of PPCT nor enter  into
any  agreement  or  contract  [o]n behalf  of  said  corporation.
Breach  of  the  agreement  can  result  in  termination  of  the
instructor  trainers  certification.   Instructor  trainers   may
conduct  courses  at the request of an agency  or  on  their  own
initiative.   However, PPCT must approve the instructor  trainers
training request.  Instructor trainers may delete techniques from
          the PPCT instruction manual, but all PPCT techniques must be
taught  according  to the manual.  Instructor  trainers  may  not
teach non-PPCT techniques.
          Unlike instructor trainers, instructors do not sign  an
agreement  with  PPCT.  However, instructors must follow  certain
procedures  for class certification.  Instructors must  submit  a
training certification request, provide students with instruction
manuals,  and  submit  student  evaluations,  a  training  injury
report, a class roster, and copies of the students exams to PPCT.
When  teaching  a  PPCT technique, instructors  may  not  grossly
modify  the  technique  in the printed manual.   Instructors  may
delete  PPCT  techniques  or  add  non-PPCT  techniques  to   the
training, but PPCT will not certify or provide litigation support
for  added  or  deleted material.  Although instructors  are  not
required to wear PPCT clothing, occasionally they wear PPCT gear.
     B.   Proceedings
          Anderson  sued PPCT for negligence, claiming that  PPCT
owed her a duty of care to train instructors not to allow the use
of  excessive  force  during classes.   PPCT  moved  for  summary
judgment  on the basis that, because Andersons injuries  did  not
occur  during  PPCT  training, PPCT could  not  have  proximately
caused  her  injuries.  Andersons opposition claimed  that  there
were disputed issues of fact and developed an additional argument
for   PPCTs  vicarious  liability  for  the  negligence  of   the
instructors.
          PPCT  filed  a  second  motion  for  summary  judgment,
arguing that (1) the instructors were not employees of PPCT,  and
(2)  even  if the instructors were independent contractors,  PPCT
was  not  liable  for  the torts of its independent  contractors.
Andersons  opposition again claimed disputed issues of  fact  and
argued   that  principles  of  vicarious  liability,   respondeat
superior,  actual  and apparent authority, and  retained  control
made PPCT liable for the actions of the instructors.
          The  superior  court  denied PPCTs motion  for  summary
judgment  on  the  negligence  claim,  finding  that  there  were
material  facts  in dispute as to whether plaintiff  was  injured
during  a segment of the training academy that was a part of  the
PPCT training.  The court granted PPCTs second motion for summary
judgment,  finding as a matter of law that the  instructors  were
neither  employees of PPCT nor independent contractors over  whom
PPCT  retained  control.  Noting Andersons shifting  theories  of
liability, the court allowed PPCT to move for summary judgment on
the agency theories.
          PPCT made a third motion for summary judgment that  was
eventually withdrawn with permission to file a fourth motion  for
summary judgment addressing any remaining issues.
          In  its  fourth and final motion for summary  judgment,
PPCT  argued that (1) Anderson could not establish duty or breach
under  her  negligence  claim, and  (2)  no  agency  relationship
existed  between  PPCT and the instructors.  The court  concluded
that,  as  a  matter of law, the instructors were not  acting  as
agents  of PPCT and granted PPCTs motion for summary judgment  on
the  issue  of agency.  As to the issue of negligence, the  court
concluded  that  previously  identified  factual  disputes  about
whether dynamic training was part of PPCT training remained,  and
also  determined that there was a factual dispute  about  whether
the  technique  being  used when [Anderson]  was  injured  was  a
technique  taught  by PPCT . . . .  Therefore, the  court  denied
PPCTs  motion  for summary judgment on the negligence  claim  but
explained that at trial Anderson would have the burden of showing
(1)  what  maneuver  was involved in her  injury;  (2)  that  the
maneuver  [was] one that was being taught based on  the  training
that the Instructors had received from PPCT; and (3) that it  was
somehow  negligent  or  otherwise  improper  for  PPCT  to   have
instructed the Instructors to teach this maneuver to others.
          Anderson  moved  for  reconsideration  of  the   courts
characterization  of  the  required elements  of  her  negligence
claim.   Anderson maintained that she should not be  required  to
show  that the maneuver involved in her injury was based on  PPCT
training.  Anderson asserted that at trial she could make  out  a
negligence  claim  by showing that PPCT negligently  trained  its
instructors  regarding excessive force and the  use  of  non-PPCT
moves  during  PPCT training.  The court denied  the  motion  for
reconsideration and suggested that if Anderson could not meet her
evidentiary  burden, she should allow judgment to be entered  and
appeal.   Anderson  refused  to  voluntarily  dismiss  the  case,
leading  the court to sua sponte reconsider its earlier  decision
and grant PPCT summary judgment on the negligence claim.
          Anderson  appeals  the superior courts  conclusions  on
summary  judgment that (1) the instructors were not employees  of
PPCT,  (2) the instructors were not independent contractors  over
whom  PPCT  retained sufficient control to impose liability,  (3)
there   was   no  agency  relationship  between  PPCT   and   the
instructors, and (4) PPCT did not owe or breach a duty of care to
Anderson.
III. STANDARD OF REVIEW
          A  trial  courts  ruling on summary  judgment  presents
questions  of  law and is reviewed independently.2   This  courts
review  is  based on the entire trial record, and in  considering
these materials this court gives [t]he non-moving party . . . the
benefit of all reasonable inferences which can be drawn from  the
proffered evidence.3
IV.  DISCUSSION
     A.   Master-Servant Relationship
          Anderson argues that PPCT is vicariously liable for the
negligence  of  the  instructors  because  the  instructors   are
servants of PPCT.  We disagree.  Under the doctrine of respondeat
superior, a master is liable for the negligence of a servant that
occurs  within  the  scope  of  employment.4   According  to  the
Restatement (Second) of Agency  220(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.5
To  determine  whether a master-servant relationship  exists,  we
look  to  all  of the characteristics listed in the Restatement.6
However, the most important factor is whether the alleged  master
had the right to control the manner of performance of the work.7
          Although  PPCT  set standards, curriculum,  and  course
          protocol, PPCT did not possess sufficient control over the
instructors  to create a master-servant relationship.   PPCT  did
not  pay the instructors, and Anderson does not contend that PPCT
had   the  authority  to  fire  them.8   While  PPCT  could  deny
certification for the class and revoke the certification  of  the
instructor, the only significant effect of these actions would be
loss   of  litigation  support.   Although  PPCT  could  prohibit
instructors from teaching certified classes, there is nothing  in
the  record  to  indicate that PPCT would try to bar  instructors
from  teaching PPCT methods in non-certified classes.  The record
demonstrates that DOC, not PPCT, told instructors not to  deviate
from the PPCT manual.  The parties do not appear to have believed
that they were creating a master-servant relationship.  While two
instructors  referred to themselves as representatives  of  PPCT,
they  did  not refer to themselves as employees, and  one  stated
clearly  that  he did not work for PPCT.  Based on all  of  these
factors,  we  conclude that, as a matter of law, the  instructors
were not servants of PPCT.
     B.   Agency
          Anderson argues that, even if the instructors were  not
servants of PPCT, they were agents of PPCT and PPCT is liable for
the  tortious  acts  of its agents.  We have  recognized  that  a
principal can be vicariously liable for the torts of its agents.9
Under  the Restatement, authority to do an act can be created  by
written or spoken words or other conduct of the principal  which,
reasonably  interpreted, causes the agent  to  believe  that  the
principal desires him so to act on the principals account.10
          While  PPCTs conduct could be interpreted as expressing
a  desire for instructors to act on its account,11 the record  is
devoid  of  evidence  that  instructors actually  and  reasonably
believed  PPCT  wanted them to act on PPCTs  behalf.   Deposition
statements by instructors that instructors are representative  of
[PPCT], instructors represent [DOC] and PPCT, and that instructor
trainers  are  elite member[s] of the organization indicate  that
the  instructors believed that their behavior reflected upon  the
reputation  of PPCT.  There is no indication that the instructors
believed  they  had  the  authority  to  act  on  PPCTs   behalf.
Addington  articulated  his  belief  that  he  represent[s]   the
techniques that [PPCT] teach[es] but not that he represent[s] the
organization.
          Anderson  argues next that the instructors had apparent
authority  to  act  on  PPCTs  account.   We  have  adopted   the
Restatement general rule for creation of apparent authority:
          [A]pparent authority to do an act is  created
          as to [a] third person[] by written or spoken
          words  or  any other conduct of the principal
          which,  reasonably  interpreted,  causes  the
          third  person  to believe that the  principal
          consents  to have the act done on his  behalf
          by the person purporting to act for him.[12]
          
          There  are three considerations in evaluating
          apparent  agency:  (1) the manifestations  of
          the   principal  to  the  third  party;   (2)
          reliance on the principals manifestations  by
          the  third  party; and (3) the reasonableness
          of  the  third partys interpretation  of  the
          principals     manifestations     and     the
          reasonableness    of   the    third    partys
          reliance.[13]
          
          As  the Restatement indicates, the manifestation may be
in  the  form  of  written or spoken words or any  other  conduct
.  . . .14  The manifestation may be directly communicated to the
third  party  or may come through, among other things,  signs  or
advertising.15  However, no agency relationship exists where  the
principal  never indicates to the third party that  the  supposed
agent  has authority.16  Anderson argues that statements made  by
instructors  and  references to the PPCT manual  during  training
were sufficient to indicate to Anderson that the instructors  had
authority.    But  because  Anderson  does  not  identify   these
statements,  it  would  be impossible to  determine  whether  her
belief was reasonable.  Furthermore, the statements were not made
by the principal, PPCT.  Although there is evidence in the record
that  instructors sometimes wore PPCT gear, there is no  evidence
that  any  of  Andersons instructors wore PPCT  gear  during  her
training.  While the PPCT manuals might be analogized to signs or
advertising,  PPCT  never  communicated directly  with  Anderson.
This  court has found it to be clear error for a trial  court  to
find  apparent agency when the third party never spoke  with  the
principal about the transaction at issue.17
          Even  if  there had been a sufficient manifestation  by
PPCT,  [t]here  must be such reliance upon the  manifestation  as
exposes  the plaintiff to the negligent conduct.18  There  is  no
evidence in the record indicating that Andersons reliance  on  an
agency  relationship  was a factor in her participation  in  PPCT
training.19
     C.   Retained Control
          Anderson  argues that the instructors were  independent
contractors, and because PPCT retained control over the manner in
which they conducted training, PPCT is liable for the instructors
negligence.   We  agree with the superior courts conclusion  that
PPCT did not retain sufficient control for liability to attach.
          As  a general rule, an employer is not responsible  for
the  negligence of an independent contractor.20  However,  if  an
employer  has  retained an element of control over the  work,  he
should  be  responsible  for  the  harmful  consequences  of  its
performance as a concomitant of the control retained.21  This  is
not an exception to the independent contractor rule, but rather a
form  of  direct liability of the employer for his own negligence
in exercising retained control.22  The Restatement clarifies that
the rule applies only where the employer has retained some degree
of  control  over the manner in which the work  is  done.23   The
employer has not retained sufficient control where he has only  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.24  Instead,  the  employer
          must retain such control that the contractor is not entirely free
to  do  the  work  in  his own way.25  Because  retained  control
subjects  an  employer to direct liability, the control  retained
must be related to the cause of the injury.
          We  consider a number of factors when deciding  whether
retained   control  applies,  none  of  which   is   individually
determinative  of  the  outcome.  The  right  to  conduct  safety
inspections and the authority to direct that dangerous  equipment
not  be  used  or  operations cease because  of  safety  concerns
indicated retained control in Hammond v. Bechtel Inc.26 and Moloso
v.  State.27   Obligating the independent  contractor  to  follow
specific  procedures  in  accomplishing the  work  and  retaining
responsibility  to  revise job specifications  to  ensure  worker
safety  were  strong evidence of retained control in Everette  v.
Alyeska  Pipeline Service Co.28  But in Petranovich v.  Matanuska
Electric  Assn,29 the right to conduct inspections and stop  work
were  not  sufficient to attribute liability where  the  contract
indicated  that  the independent contractor was  responsible  for
safety  compliance.  Inspections and stop-work provisions do  not
necessarily establish retained control if the employer  does  not
assume  any affirmative safety duties.  In Moloso the court  also
noted  that  [i]f  the employer reserves and exercises  only  the
right  to  inspect the construction work to see that the contract
specifications are met while the independent contractor  controls
how  and  when  the  work is to be done, there  is  probably  not
sufficient   retained  control  to  subject  [the  employer]   to
liability.30  Merely retaining the power to forbid work from being
done  in a dangerous manner is not in itself a sufficient  degree
of retained control to result in liability.31
          In this case, PPCT did not reserve the right to conduct
safety   inspections   though  it   did   advance   some   safety
requirements.    However,   as   in   Petranovich,   any   safety
requirements were the responsibility of the instructor, not PPCT.
While  PPCT  told  instructors  to  follow  specific  speed   and
repetition  guidelines  during training,  these  procedures  were
designed  to  help students retain information.  The record  does
not  indicate that PPCT has the right to order a training stopped
or  resumed.   PPCT  may have the right to review  an  instructor
trainers techniques or to receive course evaluations, but this is
insufficient  to  indicate  retained  control  under   both   the
Restatement guidelines32 and Moloso.33  PPCT can make suggestions
or recommendations, but DOC is not required to follow them.  PPCT
cannot  force  DOC  to employ particular techniques  or  training
methods,  or  even prescribe alterations and deviations  in  DOCs
training  methods.   If  PPCT disagreed with  a  training  method
employed by instructors at DOC, the most PPCT could do is  refuse
litigation support.
     D.   Negligent Training
          Andersons  final  argument  is  that  PPCT  negligently
trained instructor trainers and instructors regarding safety  and
the  use  of  non-PPCT moves during PPCT training.   In  its  sua
sponte  order  denying  PPCTs motion  for  summary  judgment  the
superior  court  explained  that, in  order  to  prevail  on  her
negligence  claim, Anderson must show at trial (1) what  maneuver
was  involved in [her] injury; (2) that the maneuver is one  that
is  being  taught based on the training that the Instructors  had
received  from  PPCT;  and (3) that it was somehow  negligent  or
otherwise improper for PPCT to have instructed the Instructors to
teach  this  maneuver  to  others.  Because  Anderson  could  not
produce  evidence  that she was injured by a PPCT  maneuver,  the
court granted PPCTs motion for summary judgment.
          The  superior  court framed Andersons negligence  claim
too narrowly.  Anderson argues that a reasonable training program
should  include safety precautions that were not included in  the
PPCT  course.   While the general rule is that a  person  is  not
required to act to protect another, we have concluded that,  when
an actor undertakes to render services to another, section 323 of
the Restatement (Second) of Torts sometimes establishes a duty of
care.34   In  Bryson v. Banner Health System we  recognized  that
multiple  provisions of the Restatement reflect  the  overarching
view that undertakings can create a duty of care and that one who
voluntarily  assumes  a  duty must then perform  that  duty  with
reasonable  care. 35  We concluded that where a treatment  center
undertook  to  provide Bryson with substance abuse treatment,  it
assumed a duty to treat her with reasonable care.36
          Having  undertaken  to  train instructor  trainers  and
instructors,   PPCT  had  a  duty  of  care  in  developing   and
implementing its training program to avoid exposing the  eventual
students of those instructors to an unreasonable risk of  danger.
This  duty  is not, as the superior court suggested,  limited  to
danger from PPCT techniques and does not, as PPCT claims, require
PPCT  to control the DOCs conduct or warn DOC trainees.  Nor does
the  claim require a showing that PPCT had control over  the  DOC
academy  or  had  an agency, independent contractor,  or  master-
servant  relationship with the instructors.37   Rather  the  duty
extends to all the techniques and procedures that are part of the
training program.  Anderson alleges that PPCT developed a program
that,  as  a  whole, produced instructor trainers and instructors
who  lacked the training they reasonably needed to protect  their
future students from harm.
          PPCT  identified dynamic training as the third sequence
of  practice.   PPCT does not provide any formal safety  training
for  instructors  or  monitor PPCT training. PPCT  provides  some
general  admonitions  to  instructors  on  safety  in  simulation
training: Simulation or dynamic training should only be conducted
utilizing  the  proper safety equipment by instructors  who  have
been  trained  in  the use of the protective  equipment  and  the
proper design and implementation of this type of training.  After
describing  the  dynamic method of learning, the  student  manual
parenthetically   states,  [s]afety  considerations   should   be
utilized.   PPCT does not offer instruction in dynamic  training.
PPCT  tells  instructors  that dynamic training  should  only  be
          practiced when proper safety equipment and supervision are
present.   PPCT also suggests outside reading material about  the
safe and proper method of conducting dynamic training exercises.
          Danger  to students may arise from both PPCT  and  non-
PPCT moves during dynamic training.38  Assuming that Anderson was
injured  during  PPCT  training, the question  for  the  jury  is
whether  PPCTs training program failed to take reasonable  steps,
such as providing sufficient warnings and safety precautions  for
instructor  trainers and instructors, that would  have  prevented
Andersons injury.
V.   CONCLUSION
          We  AFFIRM  summary judgment on the vicarious liability
and  retained  control claims.  We REVERSE the grant  of  summary
judgment on the negligence claim.
_______________________________
     1     The  superior court found a genuine issue of  material
fact  as  to  whether simulation training was part  of  the  PPCT
program.   For  purposes  of review, we resolve  the  dispute  in
Andersons favor.

     2    Snook v. Bowers, 12 P.3d 771, 776 (Alaska 2000).

     3     Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d  434,
437  (Alaska 1995) (citing Deal v. Kearney, 851 P.2d  1353,  1361
(Alaska 1993)).

     4    Powell v. Tanner, 59 P.3d 246, 248 (Alaska 2002).

     5    Restatement (Second) of Agency  220(1) (1958).

     6    See Nicholas v. Moore, 570 P.2d 174, 177 (Alaska 1977).
Restatement (Second) of Agency  220(2) (1958) states:

               (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.
          
     7    See Nicholas, 570 P.2d at 177.

     8     We recognize that gratuitous acts may sometimes create
a  master-servant relationship.  Restatement (Second)  of  Agency
225  (1958).   However,  comment  b  to   225  states  that  [i]n
determining whether or not one rendering gratuitous assistance to
another  is a servant, the purpose for which the former acts  may
be  important.  The example given is that if a car is stalled  in
traffic  and another driver gets out of his own car to assist  in
pushing  the  car  to the curb, such driver is presumably  not  a
servant of the owner of the first car if his purpose is to remove
an obstruction to his own progress down the street.  In this case
the purpose of the service was to benefit DOC, not PPCT.

     9     Cummins,  Inc.  v. Nelson, 115 P.3d 536,  544  (Alaska
2005)  (holding that because agent had apparent authority to  act
for  principal,  both  agent and principal were  liable  for  the
negligence  of  the agent as if they were personally  negligent);
see  also  Austin v. Fulton Ins. Co., 498 P.2d 702,  705  (Alaska
1972)  (noting  that principal is liable for  tort  committed  by
agent within scope of apparent authority).

     10    Restatement (Second) of Agency  26 (1958).

     11     The  training  manual states that if  an  instructors
certification  is not kept current, the instructor is  prohibited
from  performing instructor duties as a representative  of  PPCT.
The  fact that PPCTs certification decision was based largely  on
information  provided  by the instructors  might  show  that  the
instructors  were authorized by PPCT to make decisions  on  PPCTs
behalf.

     12     City of Delta Junction v. Mack Trucks, Inc., 670 P.2d
1128,  1130 (Alaska 1983) (quoting Restatement (Second) of Agency
27 (1958)).

     13    Cummins, 115 P.3d at 542.

     14    Restatement (Second) of Agency  27 (1958).

     15    Id. at  8 cmt. b (1958).

     16     Bruton v. Automatic Welding & Supply Corp., 513  P.2d
1122, 1126 (Alaska 1973) (holding that mere loan of a vehicle not
manifestation that borrower may act on loaners account).

     17    Perkins v. Willacy, 431 P.2d 141, 143 (Alaska 1967).

     18    Cummins, 115 P.3d at 543 (quoting Restatement (Second)
of Agency  267 cmt. a (1958)).

     19     But cf. Mack Trucks, 670 P.2d at 1131 (holding it was
jury  question whether Mack Trucks acquiescence to  Alaska  Macks
use  of  its  name and reputation was sufficient  for  agency  by
apparent  authority); Mercer v. Weyerhaeuser Co., 735  A.2d  576,
594  (N.J.  Super.  1999)  (holding  plaintiffs  assertions  that
principals reputation influenced their decision created issue  of
fact for jury).

     20     Morris v. City of Soldotna, 553 P.2d 474, 478 (Alaska
1976).

     21    Id.

     22    Moloso v. State, 644 P.2d 205, 211 n.5 (Alaska 1982).

     23    Restatement (second) of Torts  414 cmt. c (1965).

     24    Id.

     25    Id.

     26     606 P.2d 1269, 1275 (Alaska 1980) (finding issues  of
material  fact where employer had an extensive safety  inspection
process, and had the authority to direct that defective equipment
not be used by the independent contractor).

     27    644 P.2d at 212-14 (holding that reasonable minds could
differ  on  whether  state  retained  control  where  state   had
authority, which it in fact used, to suspend work due  to  unsafe
conditions,   to  evaluate  and  change  plans  as   construction
progressed, and arguably to control the safety procedures on  the
job).

     28     614  P.2d  1341, 1348 (Alaska 1980) (holding  genuine
issue  of  fact found where independent contractor  obligated  to
adhere   to   certain  job  specifications,  including   specific
procedures  for handling and stringing the pipe on the  pipeline,
where one incident indicated that Alyeska retained responsibility
to  revise job specifications to ensure worker safety, and  where
project safety control manual was published in part by Alyeska).

     29     22  P.3d  451, 452, 455 (Alaska 2001)  (adopting  the
superior courts finding that right to conduct inspections of  the
project  and  to  stop  work  were not  sufficient  to  attribute
liability  where  safety  requirements made  it  clear  that  the
independent   contractor  was  responsible  for  compliance   and
contract did not suggest any affirmative safety duties).

     30    Moloso, 644 P.2d at 211.

     31    See State v. Morris, 555 P.2d 1216, 1218 (Alaska 1976)
(quoting  Orr  v.  United States, 486 F.2d  270,  275  (5th  Cir.
1973)).

     32    Restatement (second) of Torts  414 cmt. c (1965).

     33    644 P.2d at 211.

     34    See City of Kotzebue v. McLean, 702 P.2d 1309, 1312-13
(Alaska 1985) (holding a city which undertakes to provide  police
protection  to  its  residents has a duty to exercise  reasonable
care in providing those services); Williams v. Mun. of Anchorage,
633  P.2d  248,  251  (Alaska  1981) (holding  municipality  that
voluntarily supplies a ladder for access between a tugboat and  a
dock is under a duty to exercise some degree of care toward those
using  the ladder); Adams v. State, 555 P.2d 235, 240-41  (Alaska
1976)  (if  the state voluntarily conducts building  fire  safety
inspections,  it must exercise reasonable care in conducting  the
inspection and abating known fire hazards).  Section 324A of  the
Restatement,  a  parallel provision, applies  this  liability  to
harms to a third party.

     35    89 P.3d 800, 805 (Alaska 2004) (quoting 2 Dan B. Dobbs,
The Law of Torts  319, at 860-61 (2001)).

     36    Id. at 805.

     37    The case PPCT cites is not to the contrary.  In Gus  &
Jacks Tire Shop v. Reznor, 8 Fed. Appx. 696, 700 (9th Cir. 2001),
the court dismissed a negligent training claim because the record
did  not suggest that the training program was inadequate.   Only
the negligent supervision claim was dismissed based on a lack  of
an agency relationship.

     38     PPCT argues that, because Anderson admits she was not
injured  by  a  PPCT  maneuver, she has failed  to  show  breach.
Because  we reject the superior courts characterization of  PPCTs
duty, PPCTs argument is moot.

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