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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rathke v. Corrections Corporation of America, Inc. (02/23/2007) sp-6104
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
| GUS RATHKE, | ) |
| ) Supreme Court No. S- 11885 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-04-11813 CI |
| ) | |
| CORRECTIONS CORPORATION | ) O P I N I O N |
| OF AMERICA, INC., FRANK LUNA, | ) |
| CARL RICHIE, D.H.O. SGT. | ) No. 6104 - February 23, 2007 |
| PARTAIN, D.H.O. SGT. ASTRADA, | ) |
| SECURITY CHIEF LOPEZ, | ) |
| SECURITY CHIEF VALESQUEZ, | ) |
| PHARMCHEM, INC., | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Gus Rathke, pro se, Florence,
Arizona. Michael D. Corey, Sandberg,
Wuestenfeld & Corey, Anchorage, for the CCA
Appellees. Andrea E. Girolamo-Welp, Lane
Powell, LLC, Anchorage, for Appellee
PharmChem, Inc.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
After serving thirty days in disciplinary segregation
based on a false positive drug test, and filing administrative
grievances that went unanswered, a state prisoner sued his
jailers and drug testers. The superior court dismissed the
prisoners claims against the private corrections company that
housed him under contract with the state, dismissed his claims
against the private companys employees, and granted summary
judgment to the drug testing company that reported the incorrect
drug test results. Because the corrections companys employees
are not liable for the breach of a contract between their
employer and another party, and because the prisoner is not a
third-party beneficiary of the contract between the corrections
company and the testing company, we affirm the superior courts
resolution of these issues. But because the prisoner has the
right to enforce the states contract with the corrections company
and because the superior court did not address all of the
prisoners claims, we vacate the superior courts orders on these
issues and remand for further proceedings.
II. FACTS1 AND PROCEEDINGS
Gus Rathke is an Alaska inmate held at the Florence
Correctional Center, Central Arizona Detention Center (Florence)
in Florence, Arizona, which is owned and operated by the
Corrections Corporation of America (CCA), a private company
housing Alaska inmates under contract with the Alaska Department
of Corrections (the state). Before April 2004 Rathke had never
failed a prison drug test. That month he was ordered to submit a
urine sample. The urinalysis was performed by PharmChem, Inc.,
which contracted with CCA to perform drug testing on Florence
inmates. PharmChem reported that Rathke tested positive for
marijuana. PharmChem reached this result using a cutoff of
twenty nanograms of THC metabolites (cannabinoids) per milliliter
of urine (ng/ml), which is the standard in Arizona. However, the
appropriate standard for Alaska inmates is 50 ng/ml. On April
29, 2004 a guard awakened Rathke following Rathkes graveyard
shift as a chemical porter and took him to a prison official who
notified him that he was guilty of THC. Rathke protested that
in his seventeen years in prison, he had never failed a drug
test. Without affording him a hearing, CCA officials sent Rathke
to administrative segregation because he was an immediate threat
to the security of the facility.
Once in segregation, Rathke submitted a request for a
drug retest, noting that he had never failed a urinalysis and
indicating that [t]here is a mistake somewhere in the process,
since the only medication he took on a regular basis was 600
milligrams of ibuprofen three times a day. No retest was
performed. Rathke requested that a hearing advocate be appointed
and met with the advocate in segregation. Shortly afterwards, a
CCA substance abuse counselor informed Rathke that he had been
expelled from a substance abuse program. On May 11, 2004, after
twelve days in segregation, Rathke appeared before a hearing
officer. Rathkes hearing advocate did not show up at the
hearing, despite Rathkes previous request. Rathke was found
guilty of illegal drug use under 22 AAC 05.400(c)(7)2 and
sentenced to thirty days in punitive segregation. After Rathke
was sentenced, the hearing officer asked him if he wanted to
appeal. Rathke reportedly told the officer that he wanted to
appeal and that he wanted both the original report and to have an
independent laboratory retest the specimen. However, the hearing
officer told him that PharmChem, which had done the original
test, would be doing the retest, that Rathke would have to pay
forty-five dollars for the retest, and that an appeal would
result in sixty to ninety additional days in segregation while
the matter was being reviewed. According to Rathke, this coerced
him to forgo his due process right to appeal because he did not
want to remain any longer in punitive segregation. Rathke spent
thirty days in punitive segregation and lost his institutional
job.
After his release from segregation, Rathke filed a
grievance with the Florence administration in August 2004,
arguing that the wrong standard was used for his drug urinalysis
and that he had been deprived of his right to notice and a
hearing before punishment. A retest was done on the same urine
sample using the Alaska standard; Rathke passed the retest. The
Florence institutional standards officer agreed that the first
test should have been conducted at 50 ng/ml and recommended that,
although Rathke did not appeal the decision to place him in
segregation, all records of the discipline should be removed from
Rathkes file and destroyed. Despite these recommendations,
Rathke never received a response to his grievance.
Acting on his own behalf, Rathke filed a complaint in
Anchorage Superior Court in October 2004 against CCA, several CCA
employees (including the Florence warden, standards
administrator, two disciplinary hearing officers, and two
security chiefs), and PharmChem. Rathke argued in his complaint
that CCA, the named CCA employees, and PharmChem breached the
contracts described above and violated his constitutional rights
by applying the incorrect standard to his urinalysis and
instituting unwarranted disciplinary measures. Rathke argued
that Alaskan inmates incarcerated by CCA are intended third-party
beneficiaries of its contracts with the state and PharmChem by
virtue of the Cleary v. Smith final settlement agreement (Cleary
FSA),3 which is incorporated into the contract between CCA and
the state. He claimed (1) compensatory damages for lost wages
incurred during his thirty days in segregation, and for the
ninety-day work hold job restriction that prevented him from an
earlier re-hire, and (2) punitive damages. Rathke also sought an
injunction ordering CCA and PharmChem to stop the erroneous drug
testing methods and a declaratory judgment that CCA and PharmChem
had breached their contracts and violated his due process rights.
Rathke also sought apologies from the defendants to be directed
to the parole board, removal of records of the erroneous drug
testing and punishment from his institutional files, and
reinstatement in the CCA substance abuse program.
In November 2004 CCA and the named CCA employees moved
to dismiss Rathkes complaint for failure to state a claim under
Alaska Civil Rule 12(b)(6), arguing that Rathke is not a third-
party beneficiary of CCAs contracts with the state or PharmChem.
Rathke opposed the motion. Superior Court Judge Mark Rindner
granted CCAs motion, ruling that prison inmates are not intended
third-party beneficiaries of either of the contracts. The
superior court also denied Rathkes motion for reconsideration.
In February 2005 PharmChem followed with a motion for
judgment on the pleadings, arguing that Rathke is not a third-
party beneficiary of PharmChems contract with CCA. Rathke did
not oppose the motion. The superior court granted the motion in
March 2005, treating it as a motion for summary judgment since
PharmChem submitted its contract with CCA as an exhibit to its
motion. Rathke later stated that he never received PharmChems
motion or the superior courts order granting it. PharmChems
motion contained a certificate that it was mailed to Rathke when
the motion was filed. The superior courts order granting summary
judgment also showed that it was mailed to Rathke. PharmChems
attorney submitted an affidavit in July 2005 indicating that she
had verified Rathkes address. Rathke submitted with his reply
brief to this court a listing of all legal mail [he] received at
CCA facility in Florence, showing that he did not receive any
mail from either the court or PharmChems attorney during the
relevant period of time.
Rathke appeals the superior courts rulings. He argues
that the superior court erred in dismissing his complaint without
addressing all of his claims and in ruling that he is not a third-
party beneficiary to CCAs contract with the state or CCAs
contract with PharmChem. He also argues that the superior court
should have given him an opportunity to amend his complaint and
to oppose PharmChems motion for judgment on the pleadings.
III. STANDARD OF REVIEW
We review de novo an order dismissing a complaint for
failure to state a claim under Civil Rule 12(b)(6).4 To survive
a Rule 12(b)(6) motion it is enough that the complaint set forth
allegations of fact consistent with and appropriate to some
enforceable cause of action.5 We presume all factual allegations
of the complaint to be true and make all reasonable inferences in
favor of the non-moving party.6
We also use the de novo standard to review grants of
summary judgment.7 As with Rule 12(b)(6) dismissals, the non-
moving party is entitled to all favorable and reasonable
inferences.8 We will affirm summary judgment where no genuine
issues of material fact exist and where the moving party is
entitled to judgment as a matter of law.9 Because contract
interpretation raises questions of law, we review de novo the
superior courts interpretation of the contracts in this case,
including the Cleary FSA.10
IV. DISCUSSION
A. Did the Superior Court Err in Dismissing Rathkes
Complaint Without Considering His Constitutional
Claims?
1. Rathke adequately raised his constitutional
claims.
Rathke argues that the superior court should have
considered all of his claims before dismissing his complaint.11
CCA argues that Rathke failed to preserve his constitutional
claims against it and its employees since he did not raise the
constitutional claims in his opposition to CCAs motion to
dismiss.
The pleadings of pro se litigants should be held to
less stringent standards than those of lawyers.12 We have held
that where the essence of a pro se litigants argument is easily
discerned from his briefs, the trial court should consider the
pro se litigants argument, provided that the applicable law is
well established and the opposing party would not be prejudiced
by the courts consideration of the issue.13
Under these standards, Rathkes constitutional arguments
are adequately raised. Contrary to CCAs assertion that Rathke
did not raise constitutional claims, Rathkes brief in the
superior court in opposition to CCAs Rule 12(b)(6) motion argued
that CCAs failure to abide by the terms of the Cleary FSA
violated Alaska inmates constitutional rights. In addition,
Rathke referred to the property int[e]rests in the Cleary FSA
which entitles the plaintiff, as a member of the Cleary class[,]
to the benefits and protections accorded under the Cleary FSA,
which he earlier characterized as constitutional.14 Finally,
neither CCA nor its employees has alleged that they would be
prejudiced by our consideration of Rathkes constitutional
arguments.
2. Rathke raised colorable constitutional claims
against CCA and its employees.
We have previously affirmed the right of a prison
inmate to sue the state and state prison officials for violations
of the inmates constitutional rights. In Ferguson v. State, Dept
of Corrections,15 we held that prison officials violated an
inmates right to due process when they expelled him from a
rehabilitation program without a disciplinary hearing and based
on a single unconfirmed urinalysis.16 We held that Alaska
prisoners have an enforceable interest in rehabilitation under
the Alaska Constitution, article 1, section 12,17 of which they
may not be deprived without due process of law.18 Additionally,
in Smith v. Cleary,19 we affirmed the right of Alaska inmates
housed by CCA in Arizona to enforce the Cleary FSA.20 We
therefore hold that Rathke is entitled to bring constitutional
claims against CCA and its named employees.21
B. Did the Superior Court Err when It Ruled that Rathke Is
Not an Intended Third-Party Beneficiary of the Contract
Between the State and CCA?
1. Rathkes contract claim against CCA
The superior court ruled that Alaska inmates in
Florence may not sue CCA for breach of its contract with the
state since the inmates are not intended third-party
beneficiaries of the contract. On appeal, Rathke argues that he
is an intended third-party beneficiary by virtue of the Cleary
FSA and its incorporation into the states contract with CCA.
In determining whether a third party is an intended
beneficiary of a contract, we refer to the Restatement (Second)
of Contracts.22 According to 302:
(1) Unless otherwise agreed between promisor
and promisee, a beneficiary of a promise is
an intended beneficiary if recognition of a
right to performance in the beneficiary is
appropriate to effectuate the intention of
the parties and either
(a) the performance of the promise will
satisfy an obligation of the promisee to pay
money to the beneficiary; or
(b) the circumstances indicate that the
promisee intends to give the beneficiary the
benefit of the promised performance.
(2) An incidental beneficiary is a
beneficiary who is not an intended
beneficiary.[23]
When applying these provisions, we have declared that
the motives of the parties in executing a contract especially
the promisee24 are determinative.25 A court looks to the parties
objective motive or intent, rather than their subjective motives.26
As a general rule, if the promised performance is rendered
directly to the beneficiary, the intent to benefit the third
party will be clearly manifested.27 For instance, with regard to
a promise to pay money, where a contract exists between a debtor
and a lender to pay the debtors debt to a creditor, if the loan
contract calls for the lender to pay a sum directly to the
creditor, then the creditor is presumed to be the intended
beneficiary of the contract, and thus the creditor may enforce
that contract against the lender.28 This general rule also
applies in other contexts where the promisor has promised to
perform a duty which the promisee owes to the beneficiary. The
Restatement provides the following illustration for 302: B
promises A to furnish support for As minor child C, whom A is
bound by law to support. C is an intended beneficiary under
Subsection (1)(a).
The state owes legal duties to all Alaska inmates,
including those housed like Rathke at the CCAs Florence, Arizona,
facility. These duties are detailed in the Cleary FSA, which is
an enforceable contract between Alaska inmates and the state.29
In dismissing Rathkes claim, the superior court conceded that the
Cleary FSA gives certain rights to prisoners, but it denied third-
party beneficiary status to the prisoners with regard to the
state/CCA contract. The court noted that the Cleary FSA duties
run only from the state to the inmates, while the duties in the
contract between the state and CCA run only between the state and
CCA. On this basis, the court concluded that state prisoners are
not third-party beneficiaries of the state/CCA contract.
We disagree with the superior courts analysis. First,
the Cleary settlement is incorporated by reference into the
state/CCA contract. Even more, many of its provisions are
repeated virtually word for word in the CCA contract. For
example, portions of the discipline section of the state/CCA
contract, allegedly breached in Rathkes case, are virtually
identical to the Cleary FSA. The Cleary FSA states:
An inmate must be given a copy of any
disciplinary reportregarding him or her not
more than five working days after the alleged
infraction, or the date the prisoner is
identified as a suspect in the infraction,
whichever occurs later, unless the action is
likely to jeopardize an ongoing investigation
by the Department or a law enforcement
agency. If an investigation is likely to be
jeopardized, a copy of the report must be
given to the inmate upon completion of the
investigation.30
The state/CCA contract states:
A Prisoner must be given a copy of a
disciplinary report not more than five
working days after the infraction or the date
the Prisoner is identified as a suspect in
the infraction, which ever occurs later. If
the investigation is likely to jeopardize an
ongoing investigation by the Alaska DOC,
CADC, or a law enforcement agency, the report
must be given to the Prisoner upon completion
of the investigation.
Additionally, the Cleary FSA states: An inmate is
presumed innocent of an infraction until proven guilty, and the
Department has the burden of establishing guilt by a
preponderance of evidence. . . . The determination of the inmates
guilt must be based only on evidence presented at the hearing.31
The state/CCA contract states: A prisoner is presumed innocent
until proven guilty by a preponderance of the evidence presented
at the hearing.
Given this identity of provisions between the FSA and
the state/CCA contract, we conclude that the prisoners are
intended third-party beneficiaries of the portions of the
contract which are taken directly from the FSA.32
The result of the superior courts order is that,
although Rathke may sue the state under the Cleary FSA, he may
not sue the state or CCA under identical provisions contained in
the state/CCA contract. Such an interpretation denies Florence
inmates direct redress against the very institution charged with
their day-to-day care and discipline. Accordingly, we hold that
Florence inmates also have the right to sue CCA for violations of
the Cleary FSA provisions contained in the CCAs contract with the
state.33
2. Rathkes contract claim against CCA employees
We turn next to Rathkes contract claim against the
individual CCA employees. In Jones v. Central Peninsula General
Hospital,34 we held that [g]enerally, an employee cannot be held
liable for the breach of a contract between the employer and
another party.35 Thus, the superior court correctly dismissed
Rathkes contract claim against individual CCA employees.
C. Did the Superior Court Err in Ruling that Rathke Is Not
a Third-Party Beneficiary to the Contract Between CCA
and PharmChem?
Unlike CCAs contract with the state, its contract with
PharmChem does not refer to inmates or prisoners except in its
attachments. Indeed, it mentions only their specimens to be
submitted for testing. Prisoners might be said to benefit from
competent drug urinalysis results reported by PharmChem (when
those results are negative), but given the fact that the
prisoners are not even mentioned in the contract, it is
impossible to say that the circumstances indicate that [CCA or
PharmChem] intends to give [the inmates] the benefit of the
promised performance.36 Accordingly, the superior court did not
err in granting summary judgment to PharmChem on Rathkes contract
claim.37 PharmChem also argues that Rathke failed to preserve his
contract claim against it because: (1) he failed to oppose
PharmChems motion for summary judgment; and (2) he failed to move
for reconsideration once he allegedly learned of the grant of
summary judgment. Because we agree with the superior courts
ruling that Rathke is not an intended third-party beneficiary of
the contract between CCA and PharmChem, we decline to reach this
issue.
V. CONCLUSION
We AFFIRM the superior courts order granting summary
judgment to PharmChem on Rathkes contract claim and its order
dismissing Rathkes contract claims against CCAs employees. We
VACATE the superior courts order granting CCAs motion to dismiss
and REMAND this case to the superior court for further
proceedings on Rathkes constitutional and contract claims against
CCA and his constitutional claims against CCAs named employees.
_______________________________
1 Because this is an appeal from dismissal for failure to
state a claim, we presume the truth of Rathkes factual
allegations. See Kollodge v. State, 757 P.2d 1024, 1025-26
(Alaska 1988).
2 High-moderate infractions include the . . . possession,
use, or introduction of contraband . . . which directly threatens
the security of the facility, such as excess money or
unauthorized drugs. 22 AAC 05.400(c)(7).
3 Cleary v. Smith, No. 3AN-81-5274, Final Settlement
Agreement and Order (Alaska Super., Sept. 21, 1990). The Cleary
FSA settled a class action by Alaska state prisoners challenging
conditions in state prisons. The FSA contains detailed facility
and operational requirements; lists rights and opportunities to
be afforded inmates, including rehabilitation programs; and lists
procedures for classification of prisoners, administrative
segregation, other matters of discipline, and grievances.
4 Kollodge, 757 P.2d at 1026 n.4.
5 Id. at 1025-26.
6 Id. at 1026.
7 Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105,
1110 (Alaska 2002).
8 Id.
9 Id.
10 Smith v. Cleary, 24 P.3d 1245, 1247 (Alaska 2001)
(citing Hertz v. State, Dept of Corrs., 869 P.2d 154, 154 (Alaska
1994)). See also Martech Const. Co., Inc. v. Ogden Envtl.
Servs., Inc., 852 P.2d 1146, 1149 (Alaska 1993) (settlement
agreement interpreted in same manner as any contract).
11 We address Rathkes constitutional claims in this
section and his other claims in Parts IV.B and
IV.C of this opinion. Rathke also argues that the
superior court should have advised him to amend
his complaint in order to cure any deficiencies.
Because we determine that Rathke adequately raised
his constitutional claims, we decline to reach
this issue.
12 Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987). See
also Estelle v. Gamble, 429 U.S. 97, 106 (1976); Wilkerson v.
State, Dept of Health & Soc. Servs., 993 P.2d 1018, 1021-22
(Alaska 1999).
13 Wilkerson, 993 P.2d at 1022 (due process and equal
protection arguments were sufficiently raised in superior court
and preserved for appeal when pro se litigant argued that denying
his [foster care] license application on the basis of . . .
dismissed [criminal] charges unfairly and unjustly deprives [him]
of his rights).
14 Internal quotation marks and emphasis omitted.
15 816 P.2d 134 (Alaska 1991).
16 Id. at 139-40.
17 Article 1, section 12, of the Alaska Constitution
provides:
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted. Criminal
administration shall be based upon the
following: the need for protecting the
public, community condemnation of the
offender, the rights of victims of crimes,
restitution from the offender, and the
principle of reformation.
(Emphasis added.) See Ferguson, 816 P.2d at 139.
18 816 P.2d at 139-40.
19 24 P.3d 1245 (Alaska 2001).
20 Id. at 1250-51.
21 We note that in an action against a CCA employee for
violation of federal constitutional rights, the employee would
not enjoy the qualified immunity accorded state officials to
damage suits under 42 U.S.C. 1983. Hertz v. State, 22 P.3d 895,
903 (Alaska App. 2001) (citing Richardson v. McKnight, 521 U.S.
399, 412 (1997)).
22 See, e.g., Kodiak Elec. Assn, Inc. v. DeLaval Turbine,
Inc., 694 P.2d 150, 154 (Alaska 1984).
23 Restatement (Second) of Contracts 302 (1979).
24 State v. Osborne, 607 P.2d 369, 371 (Alaska 1980)
(Ordinarily, only the promisees . . . motives are relevant.)
(citing 4 A. Corbin, Corbin on Contracts 776 (1951)). See also
13 Williston 37:8 at 71 (According to the majority rule, there
is no requirement of mutual intent, as to the right of
enforcement, on the part of the contracting parties; instead, it
is the intent or purpose of the promisee who pays for the promise
that has been generally considered as governing . . . .).
25 Osborne, 607 P.2d at 371. In Osborne, since a house
builders employee was not an intended third-party beneficiary of
a contract between the house builder and the house buyer, the
employee could not collect unpaid wages from the buyer. It does
not seem possible that [the house builder] negotiated a contract
to build a house so that he could confer a benefit on his
employees any more than he intended to benefit building suppliers
in Fairbanks. Id. See also Howell v. Ketchikan Pulp Co., 943
P.2d 1205, 1207 (Alaska 1997). In that case, Howell, a
pipefitter, was employed by a contractor to repair a boiler on
Ketchikan Pulp Companys premises. Howell was injured on the job
and attempted to recover from Ketchikan Pulp on the theory that
he was a third-party beneficiary of Ketchikan Pulps contract with
Howells employer, which included an indemnity clause for
liability for injuries to the contractors employees. In ruling
in favor of Ketchikan Pulp, we held that the parties drafted the
indemnity clause in order to allocate liability and protect
themselves from litigation, not to benefit the contractors
employees. Id.
26 See Restatement (Second) of Contracts 2 cmt. b
(adopting external or objective standard for interpreting conduct
in order to determine parties intentions).
27 13 Richard A. Lord, Williston on Contracts 37:8 at 70
(4th ed. 2000). See also id. at 68-69 ([U]nder the Restatement
(Second) view, a party may be deemed an intended beneficiary
regardless of the actual intentions of the parties, a view
consistent with the objective theory of contracts generally, in
that it places primary emphasis on the objective, rather than the
subjective intention of the parties.).
28 Alaska Contl, Inc. v. Trickey, 933 P.2d 528, 533
(Alaska 1997) (holding that contract to provide borrower with
funds to pay his debts did not give creditors right to enforce
contract as third-party beneficiaries since rights vest in
creditor only when lender promises to make payment directly to
creditor; borrowers intervening agency disrupted any relationship
between creditor and lender). See also 13 Williston 37:7 at 55.
29 Smith v. Cleary, 24 P.3d at 1247 n.3, 1251.
30 Cleary FSA at 59.
31 Id. at 63.
32 CCA has also promised to indemnify the state for any
claims arising from the CCAs performance of the contract:
CADC shall indemnify, save harmless and
defend the state, its officers, and its
employees from any and all claims or actions
for injuries or damages sustained by any
person or property arising directly or
indirectly as a result of any act or omission
of CADC, subcontractor or anyone directly or
indirectly employed by them in the
performance of this contract, including but
not limited to:
A) Any and all claims, including civil
rights claims arising from the
provisions of this Contract, including
but not limited to, any and all claims
arising from:
1) Any breach or default on the part
of CADC in the performance of the
Contract . . . .
33 We note that the United States District Court for
Alaska has reached the opposite conclusion in a recent case based
on Alaska contract law. Miller v. Corrs. Corp. of America, 375
F. Supp. 2d 889 (D. Alaska 2005) (federal jurisdiction based on
diversity of citizenship). To the extent that Miller is
inconsistent with our analysis of the third-party beneficiary
question presented by the Cleary settlement and the states
contract with CCA, we disagree with the decision.
34 779 P.2d 783 (Alaska 1989).
35 Id. at 791.
36 Restatement (Second) of Contracts 302(1)(b).
37 We make no determination as to whether Rathkes
complaint can be read to support a claim for negligence against
PharmChem (for failure to carry out testing duties as prescribed
in the contract). On remand, if Rathkes unresponsiveness to
PharmChems motion for judgment on the pleadings is found by the
superior court to be excused, the court may consider this
question.
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