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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ayuluk v. Red Oaks Assisted Living, Inc. (02/20/2009) sp-6337
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
| JAMES AYULUK, as Conservator | ) |
| for Ruth Ayuluk, | ) Supreme Court Nos. |
| ) S-11981/S-12502/S-12522 | |
| Appellant/Cross-Appellee, | ) |
| ) Superior Court No. 3AN-01- 09443 CI | |
| v. | ) |
| ) O P I N I O N | |
| RED OAKS ASSISTED LIVING, INC.; | ) |
| SUSAN R. REEVES; RICHARD L. | ) No. 6337 February 20, 2009 |
| REEVES; LESLEE K. OREBAUGH; | ) |
| PARKSIDE ASSISTED LIVING, INC., | ) |
| d/b/a ROSEWOOD ASSISTED LIVING; | ) |
| and GARY W. AUSTIN, SR., | ) |
| ) | |
| Appellees/Cross-Appellants. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Richard E. Vollertsen,
Christopher J. Slottee, Atkinson, Conway &
Gagnon, Anchorage, for Appellant/Cross-
Appellee. Peter J. Maassen, Ingaldson,
Maassen & Fitzgerald, P.C., Anchorage, for
Appellees/Cross-Appellants Red Oaks Assisted
Living, Inc., Susan Reeves, and Richard
Reeves. John C. Pharr, Anchorage, for
Appellees/Cross-Appellants Leslee Orebaugh
and Parkside Assisted Living, Inc., d/b/a
Rosewood Assisted Living.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
Ruth Ayuluk has impaired mental capacity as a result of
a brain injury. While she was a resident of the Red Oaks
Assisted Living Home, Gary Austin, an employee of the home and
one of Ruths caregivers, had sex with her on numerous occasions.
When this was discovered Ruths conservator sued Austin, Red Oaks,
Red Oakss owners Susan and Richard Reeves, Leslee Orebaugh, Red
Oakss designated administrator, and Orebaughs company Parkside
Assisted Living, Inc. Red Oaks and Orebaugh later joined Jill
Friedman, Ruths care coordinator, as a third-party defendant. A
jury trial was conducted. The jury found that while Ruth often
consented to sex with Austin, she did not consent on ten
occasions. For these occasions, Austin was found liable for
sexual battery. The jury awarded Ruth compensatory damages
against Austin of $1,000 and punitive damages of $6,500. The
other defendants were exonerated. On appeal, numerous
evidentiary and instructional errors are argued. We conclude
that some of them have merit and remand for a new trial against
Red Oaks and the Reeveses. The appellees cross-appeal on a
discovery issue and an order requiring that they pay fees and
costs as a condition of granting their motion to join Friedman,
which required that the trial date be continued. They were
required to pay $74,416 under the order. We conclude that this
award must be recalculated on remand.
II. FACTS AND PROCEEDINGS
On May 7, 1995, Ruth Ayuluk suffered a disabling brain
injury while riding an ATV. Her parents, Andrew and Theresa
Ayuluk, were appointed to be her conservators.1 The settlement
of a personal injury case left Ruth with substantial funds that
are managed by a trust committee. The committee appointed Jill
Friedman to be Ruths case manager. Friedman placed Ruth in Red
Oaks Assisted Living Home. She selected Red Oaks because its
care was aimed at a younger population than most assisted living
homes in Anchorage. Ruth entered Red Oaks on June 4, 1999, and
Friedman provided a care plan detailing Ruths limitations and
needs.
Susan and Richard Reeves are the owners of Red Oaks and
are licensed as operators of assisted living homes.2 Leslee
Orebaugh is Susan Reevess mother and owns another assisted living
home company, Parkside Assisted Living, Inc.3 Orebaugh was an
administrator designee for Red Oaks, a position required by state
regulations. Under 7 Alaska Administrative Code (AAC)
75.210(a)(2) an assisted living home must appoint both an
administrator to manage the daily operations of the home and an
administrator designee who is to act for the administrator when
the administrator is not available for more than twenty-four
hours. Beyond her designation as an administrator designee, the
extent of Orebaughs involvement with Red Oaks was disputed at
trial.
Gary Austin was hired by Red Oaks as a caregiver. He
was a certified nurses aide (CNA), but the parties disputed
whether he was employed by Red Oaks in that capacity. Orebaugh
became acquainted with Austin when she was appointed by the state
to administer an assisted living home that the state was in the
process of closing. Austin was employed by this home until it
was closed. During Orebaughs three-week tenure at the home, she
learned of allegations that Austin had previously brought a
pornographic tape to work and that he had come to work under the
influence of alcohol. Orebaugh discussed appropriate boundaries
with Austin, but did not attempt to ascertain the truth of the
allegations.
Orebaugh told Susan Reeves about Austin when Reeves
mentioned that Red Oaks was looking for an employee. At trial,
the parties disputed whether Orebaugh recommended Austin or
simply informed Reeves he was available. Orebaugh told Reeves of
the allegations regarding pornography before Red Oaks hired
Austin. Reeves also learned of the allegations regarding alcohol
prior to hiring Austin.4
While at Red Oaks, Austin acted in a sexually
inappropriate manner towards co-worker Cynthia York and Sarah
Shine, a caregiver employed by Friedman to work with Ruth.
Austins behavior was reported to both Susan Reeves and Orebaugh.
York and Shine also informed Susan Reeves of concerns that Austin
was acting inappropriately towards Ruth, including rubbing her
shoulders and stroking her hair. In addition, York informed
Susan Reeves that a crying resident was found to have bruises on
her thighs shortly after Austins shift ended. The extent of Red
Oakss responses to these incidents and the relevance of these
incidents were disputed by the parties.
On October 24, 1999, Friedman removed Ruth from Red
Oaks because her behavior had become emotionally unstable.
Shortly thereafter, Ruth disclosed that she had sexual relations
with Austin. Austin admitted to having sexual relations with
Ruth, including vaginal, oral, and anal sex, but maintained that
the sexual relationship was consensual. Ruth stated that some of
the sex was consensual, but also that she sometimes engaged in
sexual activity that she did not feel comfortable doing. Ruths
conservator maintains that Ruth does not have the mental capacity
to consent to sexual relations with an authority figure such as a
caregiver.
In 2001 plaintiff sued Austin, Red Oaks, the Reeveses,
Orebaugh, and Parkside for bodily injury and emotional distress
arising out of Austins sexual relations with Ruth.5 Theories of
negligent hire and failure to protect were presented as well as
battery as to Austin, and vicarious liability for Austins acts.
After much discovery and motion practice a trial was set for
November 1, 2004.
In August 2004 Orebaugh moved to add Friedman as a
party to the case.6 The superior court denied this motion on
timeliness grounds, but later granted a renewed motion to amend.
As a condition of granting this motion, the superior court ruled
that Orebaugh and Red Oaks would be responsible for fifty percent
of plaintiffs attorneys fees and costs until three days before
the next scheduled trial date.
Before the start of trial, the superior court made a
number of rulings regarding the evidence that would be used at
trial. The court denied plaintiffs motion to exclude evidence of
Ruths sexual history. The court stated that
[t]his order is not intended to preclude the
plaintiff from raising any appropriate
evidentiary objection at trial with respect
to specific questions. Plaintiff may request
a hearing on this issue outside of the
presence of the jury before opening or before
a particular witness testifies, so that the
scope of questioning on this topic can be
clarified outside the presence of the jury.
The court also ruled on Red Oakss global motion in
limine as follows:
The following testimony, exhibits,
and/or commentary in front of the jury is
excluded:
1. That Gary Austin may have made sexual
contact with Cindy York, irrespective of
whether this contact is referred to as
sexual harassment. The evidence would
have limited relevance apart from
propensity, which is somewhat attenuated
in any event, and should be excluded
under [Evidence Rule] 403.
2. That Mr. Austin may have had sexual
contact or inappropriate sexual conduct
towards other residents. Evidence Rule
404(b). However, the court may permit
evidence of such allegations to the
extent that such allegations were
communicated to Red Oaks or Parkside
before Mr. Austin left the facility, but
no reference shall be made to any such
allegations until such proposed evidence
is first presented outside of the
presence of the jury.
3. That Gary Austin did or was rumored to
have brought a pornographic video to a
previous place of employment. Evidence
Rules 404(b), 403.
4. That Gary Austin was or was rumored to
have been at a previous place of
employment under the influence of
alcohol. Evidence Rules 404(b), 403.
5. That Ms. York believed that Gary Austin
did not complete his assigned duties
while employed at Red Oaks assisted
living home or a prior assisted living
home. Evidence Rules 404(b), 403.
In response to plaintiffs motion to reconsider, the
superior court reversed in part its decision to exclude evidence
of Austins sexual or sexualized conduct toward other residents
and employees. The court stated:
The court grants the motion to
reconsider with respect to Gary Austins
sexual or sexualized conduct toward other
residents and fellow employees to the extent
that there is evidence that such conduct was
made known to the Reeves and Red Oaks
Assisted Living. It is relevant to show
notice of such behavior. It is not
admissible to establish that Mr. Austin
engaged in sexual behavior with Ms. Ayuluk.
The superior court also limited the testimony from two
of plaintiffs proposed expert witnesses Tina DeLapp and Suzan
Armstrong. DeLapp was a former member of the Alaska Board of
Nursing, the board that regulates CNAs. Armstrong was a former
deputy ombudsman for the Office of the Long Term Care Ombudsman.
With respect to DeLapp, the superior court ordered in part that
DeLapp shall not be allowed to testify on the standards of care
applicable to assisted living homes and its employees as she is
not qualified or experienced in this area. With respect to
Armstrong, the superior court ordered that:
1. Suzan Armstrong is not qualified to
offer expert opinions on assisted living
homes or what DHSS or prosecutors should have
done, nor should her former role as ombudsman
be employed to qualify her to give opinions
in active litigation;
2. Defendants do not have access to the
basis for Suzan Armstrongs opinions because
of confidentiality issues and therefore are
denied meaningful cross-examination of
Armstrong, rendering her opinions, which in
any way rely upon such foundation,
inadmissible;
3. Suzan Armstrong is not qualified to
make expert opinions on hiring practices,
sexual relationship damages, the ability of a
person to consent to sexual relations and/or
indicators of sexual predators;
4. Suzan Armstrongs
assum
ption
s of
a
duty
to
keep
Ruth
safe
misst
ate
Alask
a law
and
are
exclu
ded
as
impro
per
testi
mony;
5. Suzan Armstrongs opinions on the
under-regulation of assisted living homes,
her opinions on what the Reeves knew or
should have known, or what risks were
foreseeable will not assist the jury and are
inadmissible under Alaska Evid. R. 403.
6. Suzan Armstrongs assumptions that
professional standards apply misstates Alaska
law. All testimony that a professional
standard of care applies is excluded as
contrary to Alaska law and improper,
misleading testimony.
Trial began on September 11, 2006. At the close of the
plaintiffs case, the court granted Orebaughs motion for directed
verdict as to the claims against her. The jury found that Ruth
was mentally capable of consenting to sexual contact, but that
there had been ten acts of nonconsensual sexual contact. Based
on those ten acts, the jury found Austin liable for sexual
battery. Red Oaks was found not negligent and not legally
responsible for Austins actions. Jill Friedman was found to have
been negligent, but not to have caused Ruths injuries. The jury
awarded a total of $1,000 in compensatory damages and $6,500 in
punitive damages. Both awards ran exclusively against Austin.
On appeal, plaintiff challenges a number of the
superior courts rulings excluding evidence, the grant of
Orebaughs motion for directed verdict, and several jury
instructions. Red Oaks challenges a discovery order and together
with Orebaugh challenges the fee and cost-sharing order.7
III. DISCUSSION
A. It Was Error To Exclude Testimony from Tina Delapp and
Suzan Armstrong on Applicable Standards of Care.
One major issue in this case was whether Red Oaks and
Austin breached a duty of care owed to Ruth. The threshold
question, of course, was what duty of care was owed. Plaintiff
argues that the superior court improperly excluded testimony from
two witnesses who would have testified about the standard of care
applicable to CNAs and assisted living home operators. Red Oaks
responds that this testimony was properly excluded because the
witnesses were not qualified as experts and their testimony was
not relevant. For the reasons discussed below, we hold that
excluding their testimony on the applicable standards of care was
error.
We review a trial courts decision to admit or exclude
expert testimony under an abuse of discretion standard.8 When
the admissibility of expert testimony turns on a question of law,
we apply our independent judgment.9
Plaintiff argues that Tina DeLapp was qualified to
testify about the standard of care governing CNAs such as Austin.
The superior court ruled that DeLapp lacked the qualifications
needed to testify on the standards of care applicable to assisted
living homes and their employees. Red Oaks supports the superior
courts position. It also argues that the duty of care of a CNA
was not applicable, because Austin was not working as a CNA.
Alaska Evidence Rule 702(c) was added to the evidence
rules by the legislature. It provides that in an action based on
professional negligence, a person may not testify as an expert
witness on the issue of the appropriate standard of care except
as provided in AS 09.20.185. Alaska Statute 09.20.185 provides
that a licensed, trained, and experienced professional who is
board certified in an area directly related to the matter at
issue may testify on the issue of the appropriate standard of
care.10 DeLapp met these criteria with respect to nurses and
CNAs. She had been a registered nurse for almost forty years and
served from 1989 to 1992 on the Alaska Board of Nursing, the
board that regulates CNAs.
Based on this expertise, she was going to testify that
certification as a nursing assistant is a credential that imposes
on the holder a duty to behave professionally in all situations
in which he is in a caregiver role with a client, regardless of
whether his current position requires that certification. She
also would have testified that any sexual contact between a CNA
and a client under his care and protection constitutes sexual
misconduct. DeLapp was clearly qualified to speak about the duty
of care applicable to a CNA, even a CNA working in a non-CNA
caregiver role.11
Red Oaks argues that even if DeLapp was qualified, her
testimony was not relevant. Evidence Rule 702(a) provides that
if
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert . . . may testify
thereto in the form of an opinion or
otherwise.
Red Oaks argues that DeLapps expert testimony would not assist
the trier of fact because everyone agreed that what Austin did
was wrong. However, establishing that Austins behavior was wrong
was not the only purpose of DeLapps testimony. Rather, the
testimony was also relevant to show that Austin breached a duty
of care when he engaged in the behavior in question. Because
DeLapps testimony was likely to assist the trier of fact in
determining whether Austin breached his duty of care, we hold
that the superior court abused its discretion in excluding her
testimony.
Similarly, plaintiff argues that Suzan Armstrong was
qualified to testify about Red Oakss standard of care regarding
supervision of Austin and about the regulations concerning sexual
contact between assisted living home caregivers and residents.
The superior court ruled that Armstrong was not qualified to
offer expert opinions on assisted living homes. Armstrong was a
former deputy ombudsman for the Office of the Long Term Care
Ombudsman (OLTCO). OLTCOs mission was to investigate complaints
made by or on behalf of an older Alaskan who resides in a long
term care facility . . . .12 Long term care facilities include
both assisted living homes and nursing homes.13 The majority of
Armstrongs experience involved investigating complaints concerned
with assisted living homes. While Alaska law states that the
ombudsman only investigates complaints made by or on behalf of
older Alaskans, OLTCO receives significant federal funding and
this funding is also used to investigate complaints concerning
younger persons in long term care if the complaint has any
potential impact on older residents. Armstrong was thus
qualified to testify to the standard of care that assisted living
homes should meet with respect to supervision of caregivers and
sexual contact between caregivers and residents.14
As with DeLapps testimony, Red Oaks argues that
Armstrongs testimony would not assist the trier of fact because
Red Oaks did not condone romantic or sexual relationships between
residents and employees. However, the purpose of Armstrongs
testimony was not merely to show that such sexual contact should
not be condoned by assisted living homes; it was also relevant to
the question whether Red Oaks breached a duty of care in
supervising Austin.
Based on her expertise, Armstrong was going to testify
that sexual predators working in long term care facilities often
display a number of traits, including: a caregiver being overly
affectionate with residents or staff, residents reporting a crush
or interest in a caregiver, the caregivers willingness to work
undesirable graveyard shifts, and the caregiver professing that
they can handle the home and its residents without any other
assistance or supervision. She also would have testified that
[a]t the very least, a prudent administrator should ascertain
through supervision and communication with residents and other
staff, that no harm is occurring during this caregivers
unsupervised shift. More generally, Armstrongs proposed
testimony was that the best way to minimize the risk of abuse of
long term care residents is to take preventive actions, including
effective hiring and screening of employees, adequate staffing
patterns and staffing supervision, education of staff and
residents on recognizing and reporting abuse, and vigilance on
the part of administrators.
Taken together, Armstrongs testimony would have been
relevant to the question of what behaviors a prudent assisted
living home administrator should be alert to and the actions that
should be taken to minimize the risk of sexual abuse of residents
by staff members. Because Armstrongs testimony was likely to
assist the trier of fact in determining whether Red Oaks breached
its duty of care, it was an abuse of discretion to exclude her
testimony.
B. It Was Error To Exclude Evidence that Red Oaks and
Orebaugh Knew Austin Posed a Risk to the Female
Residents of Red Oaks.
Plaintiff argues that the superior court improperly
excluded certain evidence that plaintiff contends showed that Red
Oaks should have known Austin posed a risk to female residents of
Red Oaks. Red Oaks counters that the superior courts exclusion
of the evidence was proper because the evidence was not probative
but was prejudicial and tangential. We conclude that it was
error to exclude evidence pertaining to the bruising of a Red
Oaks resident and to the rumors of Austin watching a pornographic
video at another assisted living home where he worked.
We review a trial courts decisions on the admissibility
of evidence for abuse of discretion.15 However, whether the
superior court applied the correct legal standard is a question
of law to which we apply our independent judgment.16
Before trial, the superior court ruled that evidence
could not be presented to the jury concerning Austin bringing a
pornographic video to a previous place of employment or having
once been under the influence of alcohol there. The superior
court made these rulings based on Alaska Evidence Rules 404(b)
and 403. At trial, the superior court ruled that plaintiff could
not introduce evidence pertaining to bruises found on a resident
at Red Oaks shortly after Austins shift had ended.
Evidence Rule 404(b)(1) prohibits admitting evidence
pertaining to other crimes, wrongs, or acts if the sole purpose
for offering the evidence is to prove the character of a person
in order to show that the person acted in conformity therewith.
It is, however, admissible for other purposes, including, but not
limited to, proof of . . . knowledge[.] Contrary to plaintiffs
argument, the risk of improper propensity evidence was not
eliminated simply because all parties agreed that Austin had sex
with Ruth. While the parties agreed that Austin and Ruth engaged
in sexual activity, the nature of that activity was contested.
Plaintiff maintained that the sexual encounters constituted
sexual abuse and assault. Austin and Red Oaks maintained that
the sexual encounters were consensual. Thus, the risk existed
that the contested evidence could be used to show that Austins
behavior was abusive and assaultive, in conformity with the
character revealed by the excluded evidence. Because the
evidence could be viewed as propensity evidence, the superior
court was correct in its decision to apply Evidence Rule 404(b)
in determining whether the evidence was admissible.
While Evidence Rule 404(b) applies, it was an abuse of
discretion to exclude items of evidence that were admissible for
the purpose of demonstrating knowledge on the part of Red Oaks.
Plaintiffs claims against Red Oaks for negligent hiring,
training, supervision, and retention required proof that Red Oaks
knew or should have known Austin posed a risk to the residents.
Evidence is only admissible for the purpose of demonstrating
knowledge if it would have shown that the employer knew or should
have known of the employees propensity for the conduct which
caused the injury.17 Thus, only evidence that would have alerted
Red Oaks that Austin posed a risk of sexual misconduct with
residents should have been admitted.18
The evidence pertaining to the alcohol rumors and the
assertions of Austins poor job performance could properly be
excluded under this standard. However, the evidence pertaining
to the pornographic video and the bruises found on a resident
shortly after Austins shift had ended should have been admitted.
The bruising could reasonably have been caused by sexual contact
of some sort. Viewing pornography on the job is also conduct
that could reasonably alert supervisors of the need for further
inquiry and supervision.
Red Oaks argues, citing a South Dakota opinion, that
the connection between possession of pornographic materials and
an individuals propensity to commit sexual offenses is tenuous,
if not nonexistent.19 We think that in the context of an assisted
living home where the opportunities for sexual abuse of residents
by caregivers are pronounced, the fact that a caregiver may be
viewing pornography on the job could reasonably be regarded as a
danger sign requiring action on the part of home administrators.
As a result, we conclude that it was an abuse of discretion to
exclude the evidence pertaining to the pornographic video as well
as the evidence of bruises found on a resident.
Red Oaks contends that the superior court properly
excluded the evidence in question under Evidence Rule 403 to
prevent a mini-trial on the truth of the proposed evidence. But
the evidence was offered against Red Oaks to show knowledge on
the part of Red Oaks rather than conduct by Austin. A limiting
instruction could have explained this point. In any event, no
mini-trial was needed as to whether the claims were true or
false.
C. It Was Error To Exclude Evidence that Austin Made
Sexual Advances Toward Other Residents of Red Oaks.
The superior court excluded evidence that Austin acted
in a sexually inappropriate way toward other residents at Red
Oaks.20 The court made its ruling based on the bar on propensity
evidence contained in Evidence Rule 404(b)(1). But the evidence
was offered for impeachment purposes, a use not prohibited by
Rule 404(b)(1).
Austin testified that he loved Ruth.21 Testimony of
advances that Austin made toward other residents could reasonably
cast doubt on the credibility of this assertion. While it is
possible for a man in love with a woman to make sexual advances
toward other women, the jury was entitled to evaluate Austins
credibility with respect to his declaration of love for Ruth in
light of contemporaneous sexual advances he made toward other
residents.
D. The Superior Court Properly Admitted Evidence of Ruths
Sexual History.
Plaintiff argues that the superior court erred by
admitting evidence of Ruths prior sexual history.22 Red Oaks
responds that the evidence was properly admitted because it was
relevant to the issues of consent, damages, and impeachment. We
think that Red Oaks has the better of this argument.
Ruths prior sexual history was relevant to the extent
that it illuminated her mental capacity to consent to sexual
contact. A persons capacity to understand something . . . is a
factual issue for the jury and, like other facts, may properly be
established by circumstantial evidence.23 In determining whether
a person has the mental capacity to consent to sex, [a] victims
mere understanding of the physical act of sex is not equivalent
to an appreciation of the nature and consequences of the victims
conduct[.]24 To appreciate the nature and consequences of
engaging in an act of sexual penetration, the victim must have
the capacity to understand the full range of ordinary and
foreseeable social, medical, and practical consequences that the
act entails[.]25
Plaintiffs expert testified that in his opinion Ruth
had significantly diminished capacity to exercise consent in
relationships where other variables are at play, other variables
primarily involving differential power relationship[s] between
her and the other person, differential levels of intellectual and
cognitive competence between her and the other person. But he
stated that her brain injury did not automatically mean that she
did not have the capacity for consent, for a romantic and sexual
relationship. The testimony introduced by Red Oaks regarding
Ruths sexual history touched on birth control, pregnancy, and
other sexual relationships. While very little of this evidence
directly pertained to Ruths capacity to consent, it was
circumstantial proof that Ruth understood the nature and
consequences of engaging in sexual conduct. The jury could have
relied on this evidence to support its conclusion that Ruth had
the capacity to consent to sexual contact.26
E. The Superior Court Did Not Err in Granting Orebaughs
Motion for Directed Verdict.
Plaintiff argues that the superior court erred in
granting Orebaughs motion for a directed verdict. Orebaugh
responds that the directed verdict was appropriate because no
evidence justified holding her liable. We agree that the
directed verdict was appropriate.27
The only two grounds that might support liability
against Orebaugh were based on (1) her duty as designated
administrator for Red Oaks, and (2) her alleged recommendation of
Austin to Red Oaks.
With respect to Orebaughs duty as designated
administrator, the evidence indicated that when Orebaugh was
acting as such, Cindy York reported to her that Austin was
sexually harassing her. Orebaugh initially indicated that she
would talk to Austin at her next opportunity, but later decided
that she would leave the situation to the Reeveses. However,
Orebaugh did ensure that York and Austin did not work together
until the Reeveses returned. Orebaugh also contacted legal
counsel who mentioned the importance of having a sexual
harassment policy. Orebaugh wrote a memo to Susan Reeves
detailing this information and upon the Reeveses return Orebaugh
informed them of Yorks report and gave them the memo that she had
drafted.
We fail to see how Orebaughs conduct in this respect
could serve as the basis for liability. An administrator
designee acts as a substitute for the administrator during the
administrators absence.28 If immediate action is called for
during the administrators absence, the administrator designee is
expected to take it. Here, however, no action beyond that which
Orebaugh took would seem to be reasonably required. When she
passed on the relevant information to the Reeveses, Orebaugh, as
the designated administrator, met her legal obligations.
Similarly, Orebaugh informed Susan Reeves that Austin
was available for work. We assume for purposes of deciding
whether the directed verdict was warranted that this was a
recommendation. But it was undisputed that Orebaugh also passed
on negative rumors regarding pornography she had heard about
Austin. When Orebaugh gave the Reeveses this information she
discharged any responsibility she may have had.29 The decision to
hire Austin rested with the Reeveses, not with Orebaugh.
F. Jury Instruction Issues
Plaintiff challenges four of the jury instructions that
were given. In the paragraphs that follow we discuss each of the
challenges.30
1. Jury Instruction No. 33
Jury Instruction No. 33 was a vicarious liability
instruction.31 Plaintiff contends that Red Oaks could have been
found vicariously liable on either of two legal theories. First,
vicarious liability could have been found if Austins conduct was
within the scope of his employment by Red Oaks. Second,
plaintiff claims that even if Austin was acting outside the scope
of his employment Red Oaks could have been liable under the aided-
in-agency theory. Plaintiff claims that Jury Instruction No. 33
incorrectly combined these two theories. The first ten listed
factors in the instruction are appropriate to a scope of
employment determination. But plaintiff contends that the
eleventh factor, whether Gary Austin was able to engage in acts
with Ruth Ayuluk because of authority, power, or access he had
due to his employment at Red Oaks, should have been the subject
of a separate instruction under which vicarious liability could
have been found even if Austin was acting outside the scope of
his employment.32
Red Oaks responds that any error in melding the two
theories was harmless because the aided-in-agency theory was not
applicable under the facts of this case and no instruction on it
should have been given.
In Veco, Inc. v. Rosebrock we approved jury
instructions that permitted a jury to impose vicarious liability
on an employer for the sexual harassment of an employee by a
supervisor under an aided-in-agency theory.33 We applied the
Restatement (Second) of Agency section 219(2)(d), which provides:
(2) A master is not subject to liability
for the torts of his servants acting outside
the scope of their employment, unless:
. . . .
(d) the servant purported to act or
speak on behalf of the principal and there
was reliance on apparent authority, or he was
aided in accomplishing the tort by the
existence of the agency relation.[34]
We determined that the aided-in-agency theory should apply
because [h]arassment by supervisors is facilitated, made more
serious, and is less apt to be reported because supervisors are
understood to be clothed with the employers authority. 35
Red Oaks argues that the aided-in-agency rule should
only apply in cases in which the victim is given to understand
that the servant is acting within his role as agent. Red Oaks
argues that Ruth had no such understanding in this case, noting
that Ruth understood that she needed to keep her romantic and
sexual interests in Austin secret from Red Oaks.36 In support of
this argument Red Oaks refers us to Zsigo v. Hurley Medical
Center.37 The court in Zsigo declined to apply the aided-in-
agency theory to a case where a nursing assistant sexually
assaulted a hospital patient. The Michigan court was concerned
that the aided-in-agency theory risked eliminating the general
rule that employers are only liable for acts of employees
committed within the scope of their employment.38 The court
suggested that if the rule had any legitimate application it
should be limited to cases of sexual harassment of an employee by
a supervisor.39
There is considerable weight to the concerns expressed
by the Michigan court that aided-in-agency as a theory
independent of apparent authority risks an unjustified expansion
of employer tort liability for acts of employees.40 Given these
concerns, we believe that the aided-in-agency theory as a
separate basis for vicarious liability outside of the employment
supervisory context should be limited to cases where an employee
has by reason of his employment substantial power or authority to
control important elements of a vulnerable tort victims life or
livelihood. Whether a particular type of case falls within this
category should be a question for the court, not a jury.41 We
believe that an instruction on the theory should have been given
in this case.
In Veco we held that an employer is vicariously liable
for a hostile work environment created by its supervisors . . .
regardless of whether the supervisors were acting within the
scope of their employment.42 We noted that although the acts of
harassment were outside the scope of employment, the power to
accomplish the unauthorized acts was a product of the supervisors
employment relationship:
[H]arassment by a supervisor carries an
implied threat that the supervisor will
punish resistance through exercising
supervisory powers, which may range from
discharge to assignment of work, particularly
exacting scrutiny, or refusal to protect the
employee from coworker harassment. . . .
Although coworkers or even outsiders may also
be capable of creating a sexually harassing
work environment, it is the authority
conferred upon a supervisor by the employer
that makes the supervisor particularly able
to force subordinates to submit to sexual
harassment.[43]
In Veco we did not suggest that an employer could be
vicariously liable for an employees torts committed outside the
scope of employment merely because the employees position gave
the employee access or proximity to the victim. Instead what is
needed, as we explained, is a relationship with authority or
control over the victim. We stated:
[A] supervisor who does not oversee the
complainant should be treated as a co-worker.
In that situation, the supervisor does not
have authority over the complainant and may
not be aided by his position in the
workplace. Furthermore, when a co-worker or
supervisor with no control over the
complainant creates a hostile environment,
the complainant should be less hesitant to
report the situation, since the harasser
could not retaliate by changing the
conditions of the complainants employment.[44]
We believe that a caregiver in an assisted living home
who has supervisory power or authority over vulnerable residents
is, for purposes of the aided-in-agency theory, in a position
that is analogous to that of a supervisor of employees. A
caregiver, as a provider of food, comfort, hygiene, and
medication for residents, has the power to withhold or delay any
of these basic needs. Thus, like the supervisor of employees, a
caregiver is in a position to punish in direct or subtle ways a
resident who resists sexual advances. While the sexual advances
themselves may neither be authorized nor reasonably appear to be
authorized by the employer, the caregivers power that enables him
to further his improper conduct is an inherent part of the
employment relationship.45
In the present case there is ample evidence that Red
Oaks placed Austin in a position of power and authority over
Ruth. The trial testimony of Cynthia Patricia Gurisko, an
employee at Red Oaks, was as follows with respect to Austins
responsibilities:
Q: And what was it that your role was going
to be at the home, at Red Oaks?
A: I was told that I was going to be the
primary care giver. I was solo shift
during the day. It was a lot of
responsibility. I was responsible for
all of the care of the of the residents
throughout my entire shift.
. . . .
Q: What was you[r] understanding of his
[Gary Austins] position?
A: I was informed that he would have the
mirror position of mine. He would at
first start out on the weekends and then
later progress to the evenings. And his
responsibilities were supposed to be the
same as mine, just on a different shift.
Another Red Oaks employee, Cynthia York, stated that on the
weekends Gary [Austin] would come in and he would be alone with
the with the entire household of residents um, completely
unsupervised.
We conclude that plaintiff was entitled to an
instruction permitting the imposition of vicarious liability on
Red Oaks under an aided-in-agency theory. Instruction No. 33 did
not suffice for that purpose because it did not recognize aided-
in-agency vicarious liability separate from vicarious liability
that may exist because the tort of an employee is within the
course and scope of his employment. Accordingly, in the new
trial that is required by this opinion, the jury should be given
an appropriate aided-in-agency instruction. Although we will not
undertake to draft a model instruction for the court, the key
determinations for the jury to make are (1) whether Austin by
reason of his employment with Red Oaks had substantial power or
authority over Ruths important needs and, if so, (2) whether that
power and authority played a substantial role in bringing about
the sexual contact between Austin and Ruth.
2. Jury Instruction No. 24
Plaintiff argues that the superior court erred in
giving Jury Instruction No. 24. This instruction was a pattern
instruction stating that Austin was subject to the reasonable
person standard. Plaintiff contends that since Austin was a CNA
and there was evidence that he was serving as such in his
employment with Red Oaks, an appropriate instruction would have
held him to the standard of care of a CNA. The important point
is that CNAs are prohibited by regulation from sexual contact
with their clients.46 Plaintiff sought an instruction that asked
the jury to determine whether Austin was acting as a CNA and, if
so, to determine whether Austin violated the regulations
governing CNAs conduct, and, if so, to find Austin negligent per
se.47
Red Oaks argues that Instruction No. 24 was appropriate
and the plaintiffs proposed instruction was properly not given
because Austin was not working as a CNA. But there was evidence
that showed that Austin applied for a CNA position, that he was
hired because he was highly certified, that he over[saw]
residents daily lives at Red Oaks, and that he believed his
position was that of a CNA. Much of this evidence was disputed,
but the dispute merely means that whether Austin was employed as
a CNA while at Red Oaks was properly a jury question.
We believe that the court should have given an
instruction along the lines of plaintiffs proposed Instruction
No. 37A. Further, in our view, the failure to give some such
instruction was prejudicial because, assuming that Austin was
acting as a CNA at Red Oaks, the instruction would have properly
advised the jury that a CNA may not have sexual contact with a
client even if it is consensual. Thus the jury could have found
that every sexual act Austin committed, whether consented to by
Ruth or not, could be the basis for an assessment of damages.
Plaintiff also claims that Instruction No. 24 was
erroneous as it applied to Red Oaks. Plaintiff claims that Red
Oakss conduct should have been measured against that of a
reasonably prudent assisted living home operator rather than the
reasonable person standard employed by Instruction No. 24. Red
Oaks argues however that Instruction No. 24 when read in
conjunction with Instruction Nos. 25 and 26 cured this possible
defect. Jury Instruction No. 25 states that parties were
required to use whatever knowledge, training, experience, skill,
or intelligence they either possessed or claimed to possess in
meeting their duty of care. Instruction No. 26 provides excerpts
from Alaska statutes and regulations dealing with assisted living
homes and states at the end that jury members may consider [any
violation of these statutes and regulations] along with all the
other evidence in deciding whether under the circumstances of
this case [Red Oaks] used reasonable care.
Read together, Instructions Nos. 24, 25, and 26 were
sufficient to convey to the jury the point that Red Oaks should
be held to the standard of care applicable to licensed assisted
living homes. Thus, as to Red Oaks, the superior court did not
err in giving Instruction No. 24 together with the two
instructions that followed it.
3. Jury Instruction No. 31
Jury Instruction No. 31 told the jury that in order for
plaintiff to prevail [p]laintiff must establish that Ruth . . .
did not have the capacity to consent to sexual relations with
. . . Austin, or did not consent to sexual relations with . . .
Austin. The instruction went on to describe the circumstances
under which a person might lack the capacity to consent to sexual
relations.48 Plaintiff contends that Instruction No. 31 was
erroneous because even if Ruth was able to consent to sexual
contact, any contact between her and Austin was a violation of
Austins standard of care as both a caregiver and a CNA.
Plaintiff also argues that Instruction No. 31 as to Red Oaks
would have been inappropriate if Armstrong and DeLapp had been
allowed to testify that any sexual contact between Austin and
Ruth regardless of consent violated assisted living home
regulations.
Red Oaks argues that to the extent that Ruth was
capable of consenting and did consent to sex with Austin, she
suffered no wrong even if Austin and Red Oaks violated their
respective duties.
We think that the plaintiff has the better of this
argument. Even if Ruth was capable of consenting to sex and did
consent to sex with Austin, tort damages for physical and mental
harm suffered by Ruth could have been assessed. Assuming that
the standard of care is that no sexual contact between staff and
residents is permitted, regardless of the consent of a resident,
that standard is imposed because of the vulnerability of
residents and consent should not be a complete defense.49
4. Instruction No. 3050
Plaintiff argues that the limitation in this
instruction to actual physical or mental injury is improper.
Plaintiff argues that actual mental injury would not include
forms of mental distress such as humiliation or degradation. But
considering the instructions taken as a whole, it is evident that
Ruths recoverable damages included many different forms of mental
distress. Instruction No. 34 informed the jury that Ruth was
claiming emotional injury and Instruction No. 35 broadly defined
emotional injury to include pain and emotional suffering, loss of
enjoyment of life, humiliation, degradation, etc. We conclude
therefore that there was no error in giving Instruction No. 30
when it is considered along with Instructions Nos. 34 and 35.
G. Damages
Plaintiffs final claim that we discuss is that the
jurys compensatory damage award cannot be utilized on remand
because it was the product of the trial courts erroneous
evidentiary and instructional rulings.51 We agree that
compensatory damages must be retried. Instruction No. 31 limited
damages to unconsented sexual contacts. But, as we have held,
the jury should have been permitted to assess damages for all of
the sexual contacts between Austin and Ruth if the jury found
that such contacts were in violation of Austins or Red Oakss
standard of care. Further, testimony concerning the standards of
care that governed Austins and Red Oakss conduct was erroneously
excluded, and as to Austin, the jury was not correctly instructed
as to the potentially applicable standard of care.52
H. Cross-Appeal
1. Medical release
On cross-appeal Red Oaks argues that if this case is
remanded, Ruth, or her conservator, should be required to sign a
medical release as part of the discovery process. Red Oaks notes
that the trial court declined to require Ruth to sign a medical
release because the court ruled that she has not sought damages
for any physical injuries and thus health care records in that
regard should remain privileged as a general rule. Instead, the
court required the production of documents associated with any
mental disability, and [Ruths] health care records associated
with sexual relations. But the court did not require Ruth to
sign a medical release limited to documents of this description.
Rather, plaintiffs attorney was required to turn over Ruths
medical records in this category. Eventually, thousands of pages
of medical records were turned over.
Red Oaks finds fault with the discovery permitted by
the superior court in two respects. First, Red Oaks contends
that the subject matter limitations imposed by the court were too
narrow. Red Oaks points out that Ruths cognitive abilities were
at issue because of the claim that she lacked the ability to
consent, and her emotional condition was at issue since emotional
distress damages were sought. Red Oaks claims that all of Ruths
medical records were relevant to these issues because they might
reasonably have contained, or led to, evidence concerning them.
Red Oaks notes that records of physical examinations often
contain observations concerning a patients emotional state and
cognitive functions, and points to a number of medical records in
this case that contained such observations.
Second, Red Oaks contends that it was entitled to a
signed medical release so that Red Oaks could collect medical
records directly from Ruths healthcare providers rather than
having to depend on plaintiffs counsel to produce them.
We agree with Red Oakss first point. The filing of a
personal injury action waives the physician/patient privilege as
to all information concerning the plaintiffs health and medical
history relevant to the matters at issue.53 And relevance is
broadly defined for discovery purposes to include not only
information that would be admissible in evidence at trial, but
also information reasonably calculated to lead to the discovery
of admissible evidence.54 Red Oakss argument that all of Ruths
medical records satisfied the discovery standard of relevance,
given the issues in this case, seems correct.55
Concerning Red Oakss second point, we have indicated
that when a plaintiffs medical privilege has been waived by the
filing of suit, discovery should normally proceed without
judicial participation . . . in a manner demonstrating candor and
common sense. 56 Requiring a plaintiff to furnish medical
releases to her adversaries is one way to accomplish that
objective.57 Further, so doing as an alternative to requiring
plaintiffs counsel to produce medical records can result in the
discovery of records of which plaintiffs counsel is not aware.
It also eliminates requiring defendants to rely on plaintiffs
counsel, as Red Oaks puts it, as the gatekeeper for the
production of medical records that he considered relevant.58
But we do not hold that trial courts necessarily must
require the furnishing of signed medical releases in personal
injury litigation. There may be alternative methods of discovery
that will produce the information that should be made available
and at the same time better protect a plaintiffs legitimate
privacy interests. Accordingly, the means and methods by which
discovery may be pursued on remand should remain subject to the
discretion of the superior court.
2. The fee and cost sharing order
On April 20, 2005, Red Oaks and Orebaugh moved to bring
in Jill Friedman as a third-party defendant. The trial was then
scheduled for May 9, 2005. Because the motion was made on the
eve of trial and granting it would require a continuance, the
court conditioned the grant of the motion by requiring that Red
Oaks and Orebaugh pay fifty percent of the costs and fees
incurred by the plaintiff between the date of the order and three
days before the next scheduled trial. A new trial was set for
April 3, 2006. But in March 2006 the trial had to be
rescheduled, because of court scheduling problems, until
September 11, 2006. After the trial, the court determined that
$74,416 should be paid by Red Oaks and Orebaugh in accordance
with the fee and cost sharing order.
Red Oaks and Orebaugh challenge this award.59 We hold
that though imposing conditions was appropriate, the award must
be vacated. Only fees and costs related to adding Friedman as
party should have been reimbursable. Further, in accordance with
the order, fees and costs incurred after three days before the
trial scheduled for April 3, 2006, should not have been awarded.
Red Oaks and Orebaugh first argue that the imposition
of the conditions was an abuse of discretion because the superior
court should have granted their motion to amend their answer to
include a claim against Friedman when they first brought the
motion in August 2004. They argue that because the superior
court should have granted their first motion, the superior court
could not properly have imposed costs on them for bringing the
renewed motion on the eve of trial.
The superior courts decision to later grant Red Oakss
and Orebaughs renewed motion to amend does not imply that its
earlier decision was an abuse of discretion. When Red Oaks and
Orebaugh filed their renewed motion, the superior court took into
consideration our intervening decision in Miller v. Safeway,
Inc., where we held that error had been committed in failing to
allow a late amendment to a complaint.60 Taking Miller v. Safeway
into account, the trial court decided to grant the renewed motion
conditioned as indicated.
We are unable to say that the court abused its
discretion when in late September 2004 the court denied the
initial motion to add Friedman. At that point trial was set to
begin on November 1, 2004. When the ruling was made it appeared
that the trial would go forward as scheduled. The trial court
indicated in ruling on the motion that it was untimely because
Friedman had long before been identified as a potential
tortfeasor and that adding her would result in prejudice. The
court appeared to accept plaintiffs counsels argument that if
Friedman were brought in as a party her counsel would need time
to prepare a defense and this would result in a continuance.
Further, additional discovery would be required which might
include retaking depositions and deposing any expert witnesses
hired by Friedman.
As it turned out, the November 1, 2004 trial date did
not hold. Discovery was reopened on December 1, 2004, and the
trial was set for May 9, 2005. It is possible that a renewed
motion to add Friedman as a party made once the trial was
rescheduled should have been granted without conditions. But no
timely motion was made. Instead, only nineteen days before the
scheduled May 9 trial did Red Oaks and Orebaugh move again to add
Friedman to the case. The superior court observed: It does
trouble me . . . that the defendants failed to seek
reconsideration of this issue promptly and waited until nineteen
days prior to trial, and it is for that reason that its caused in
my mind a lot more unnecessary delay and additional cost. In our
view these observations were appropriate and we do not believe
that the superior court abused its discretion in requiring Red
Oaks and Orebaugh to reimburse Ruth for fees and costs related to
the addition of Friedman as a party.
But when a court imposes attorneys fees for dilatory
amendments, there must be a showing of a connection between the
late filing and additional expenses.61 No such connection was
required in the order under review. We agree with Red Oaks that
[i]t was unfair for the defendants to be liable during this
entire time for 50% of whatever the plaintiffs attorney saw fit
to do in order to better prepare their case.
We also agree with Red Oaks that attorneys fees and
costs incurred after three days before the rescheduled April 2006
trial date should not have been awarded. The order by its terms
is limited to this period. Further, the additional delay that
occurred after the end of this period was not due to any fault of
the appellees.
We therefore vacate the $74,416 award. On remand the
court should award only costs and fees reasonably related to the
addition of Friedman as a party, and the continuance required by
her addition, incurred not later than three days before the
rescheduled trial time of April 3, 2006.
IV. CONCLUSION
For the above reasons
(1) the final judgment is AFFIRMED insofar as it
dismisses Orebaugh and Parkside Assisted Living;
(2) the judgment is REVERSED with regard to the
Reeveses and Red Oaks Assisted Living, Inc.;
(3) the judgment is VACATED as to the compensatory and
punitive damage award in favor of the plaintiff against Gary
Austin;
(4) the judgment is VACATED with respect to the $74,416
award of fees and costs against the Reeveses, Red Oaks, Orebaugh,
and Parkside; and
(5) this case is REMANDED for additional proceedings in
accordance with the views expressed in this opinion.
_______________________________
1 Subsequently, Ruths brother James was appointed as her
conservator. We refer to him as the plaintiff in this opinion.
2 References throughout this opinion to Red Oaks include
the Reeveses.
3 When we refer to Orebaugh as a party we also include
Parkside.
4 Susan Reeves learned of the allegation regarding
alcohol in a conversation with Cindy York. Orebaugh also
indicated that she might have discussed the alcohol rumor with
Reeves, but Reeves testified that she had not discussed the
allegation regarding alcohol with Orebaugh.
5 The suit was initially brought in Ruths name. It was
later ratified by her conservator and at some point the
conservator was substituted for Ruth as the named plaintiff.
6 Red Oaks later joined in the motion.
7 Red Oaks also initially appealed the ratification of
the lawsuit by Ruths conservators as untimely, but withdrew this
argument in its reply brief.
8 Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005).
9 Id.
10 AS 09.20.185 provides:
(a) In an action based on professional
negligence, a person may not testify as an
expert witness on the issue of the
appropriate standard of care unless the
witness is
(1) a professional who is licensed in
this state or in another state or country;
(2) trained and experienced in the same
discipline or school of practice as the
defendant or in an area directly related to a
matter at issue; and
(3) certified by a board recognized by
the state as having acknowledged expertise
and training directly related to the
particular field or matter at issue.
(b) The provisions of (a) of this
section do not apply if the state has not
recognized a board that has certified the
witness in the particular field or matter at
issue.
11 The superior court also held that DeLapp was not
qualified to offer expert opinions on either mental health
issues or severe emotional damages of a person whom she has not
examined or the hiring, firing, or supervision of assisted living
facility employees. She was also precluded from testifying on
the foreseeability of a sexual relationship or sexual action of
Gary Austin. Plaintiff does not appeal these portions of the
superior courts order.
12 AS 47.62.015(a).
13 AS 47.62.090(2).
14 The superior court also excluded Armstrongs testimony
on the grounds that the defense did not have access to the basis
for her opinions because of confidentiality issues, thus denying
Red Oaks the opportunity for meaningful cross-examination. While
OLTCO cannot release confidential records, reports of
investigations are considered public documents and are regularly
released to the public. The availability of these reports
provides Red Oaks with a sufficient basis for conducting cross-
examination. As plaintiff points out, expert testimony from
physicians, psychologists, and lawyers is often based on the
treatment of other patients or clients whose records are
confidential. Members of these groups are often qualified as
expert witnesses, and the law does not prevent them from being
called as expert witnesses. It was error to bar Armstrongs
testimony on this ground.
15 Landers v. Municipality of Anchorage, 915 P.2d 614, 616
n.1 (Alaska 1996).
16 Id.
17 Estevez-Yalcin v. Childrens Vill., 331 F. Supp. 2d 170,
174 (S.D.N.Y. 2004) (quoting Kenneth R. v. Roman Catholic Diocese
of Brooklyn, 654 N.Y.S.2d 791, 793-94 (App. Div. 1997)).
18 The superior court allowed evidence of Austins
sexualized conduct toward other residents and fellow employees to
be admitted to the extent that such conduct was made known to Red
Oaks because it was relevant to show notice of the risk of such
behavior.
19 State v. White, 549 N.W.2d 676, 682 (S.D. 1996).
20 Plaintiff does not show that Red Oaks knew or should
have known about this conduct prior to Ruths sexual contact with
Austin. Therefore, this evidence was not admissible for the
purpose of showing knowledge by Red Oaks.
21 In response to questioning, Austin testified in part as
follows:
Q. How did you feel about Ruth?
A. Feelings developed over time. We had a
quiet time together that was better than
anything Id ever experienced before just
in . . . holding each other. . . .
. . . .
Q. Did you care about her?
A. Yes.
Q. Did you love her?
A. Yes, I did.
22 The superior court denied plaintiffs motion in limine
to exclude evidence of Ruths sexual history, but the order
permitted plaintiff to make evidentiary objections by asking for
a hearing before any particular witness was called to make sure
that the scope of questioning was appropriate. Plaintiff made a
motion to reconsider before the start of trial, but the superior
court denied the motion. Red Oaks did not call any witnesses in
its defense, deciding to only play part of Ruths deposition
instead. To the extent that Ruths sexual history was entered
into the record, it was during examination and cross-examination
of plaintiffs witnesses.
23 Jackson v. State, 890 P.2d 587, 592 (Alaska App. 1995).
24 Id. at 591.
25 Id. at 592.
26 Plaintiff also argues that Ruths sexual history should
have been excluded under Evidence Rule 403 because it encouraged
the jury to view her in a bad light. In view of the importance
of the issue of Ruths capacity to consent to sex, we are unable
to say that the superior court abused its discretion in finding
the evidence more probative than prejudicial.
27 When reviewing such motions, this court determines
whether the evidence, when viewed in the light most favorable to
the non-moving party, is such that reasonable persons could not
differ in their judgment. Alaska Marine Pilots v. Hendsch, 950
P.2d 98, 108 (Alaska 1997).
28 7 AAC 75.210(a)(2).
29 There is a question whether Orebaugh told Reeves of the
rumors regarding Austin drinking at his prior place of
employment. See supra note 4. Reeves may have gotten this
information only from York, but the important point is that
Reeves had the information and hired Austin anyway. Thus any
oversight on the part of Orebaugh in failing to pass on the
information regarding the rumor of alcohol use could not serve as
a basis for imposing liability on her.
30 The correctness of jury instructions is reviewed de
novo. Parnell v. Peak Oilfield Serv., 174 P.3d 757 (Alaska
2007):
An instruction that sets out an incorrect or
incomplete statement of the applicable law
amounts to reversible error only if it causes
substantial prejudice to a party that is,
only if it can be said that the verdict may
have been different had the erroneous
instruction not been given. When evaluating
whether there has been prejudicial error with
regard to jury instructions, the reviewing
court must put itself in the position of the
jurors and determine whether the error
probably affected their judgment.
Id. at 765 (citations omitted).
31 Jury Instruction No. 33 provided:
Under certain circumstances, an employer
may be legally responsible for the acts of
its employee. I[n] order to determine
whether Susan and Richard Reeves d/b/a Red
Oaks Assisted Living are legally responsible
for the acts of Gary Austin, you must decide
that it is more likely true than not true
that he was acting within the course and
scope of his employment. In order to
determine whether he was acting within the
course and scope of his employment, you may
consider the following factors:
(1) whether Gary Austins acts were of a
kind that he was employed to perform;
(2) whether Gary Austins acts occurred
substantially within the authorized time and
space limits of employment;
(3) whether Gary Austins acts were
motivated, at least in part, by a purpose to
serve Susan and Richard Reeves d/b/a Red Oaks
Assisted Living;
(4) whether Gary Austins intentional
acts [were] of the type and nature that
[were] not unexpected by Susan and Richard
Reeves d/b/a Red Oaks Assisted Living;
(5) whether the acts of Gary Austin were
the kind or similar to the kind requested by
Susan and Richard Reeves d/b/a Red Oaks
Assisted Living;
(6) whether the purpose of Gary Austins
acts were to serve Susan and Richard Reeves
d/b/a Red Oaks Assisted Living, not his own
benefit;
(7) whether the acts of Gary Austin did
in fact serve Susan and Richard Reeves d/b/a
Red Oaks Assisted Living;
(8) whether the acts of Gary Austin were
similar to other acts authorized by Susan and
Richard Reeves d/b/a Red Oaks Assisted Living
or reasonably related to other acts
authorized by Susan and Richard Reeves d/b/a
Red Oaks Assisted Living;
(9) whether the acts of Gary Austin were
reasonably necessary to accomplish something
that Susan and Richard Reeves d/b/a Red Oaks
Assisted Living requested or required;
(10) whether the acts of Gary Austin
were of the type that Susan and Richard
Reeves d/b/a/ Red Oaks Assisted Living
reasonably should have expected in the
performance of his duties to Susan and
Richard Reeves d/b/a Red Oaks Assisted
Living;
(11) whether Gary Austin was able to
engage in acts with Ruth Ayuluk because of
authority, power, or access he had due to his
employment at Red Oaks.
32 Plaintiffs proposed aided-in-agency instruction stated:
(Proposed No. 46)
I will now instruct you how to determine
if Red Oaks is legally responsible for the
actions of Gary Austin. Under the law, the
fact that Gary Austins actions may have been
intentional, criminal or sexual in nature
does not absolve Red Oaks from legal
responsibility for those actions.
Furthermore, the fact that Gary Austins
actions may have been specifically prohibited
by Red Oaks also does not absolve Red Oaks
from legal responsibility for those actions.
The law provides that Red Oaks is legally
responsible for Gary Austins actions if Gary
Austin was aided in engaging in his sexual
contacts with Ruth by his employment within
Red Oaks.
There are several factors you may
consider in determining whether Austins
sexual contact with Ruth was made possible or
facilitated by the existence of the
employment relationship between Gary Austin
and Red Oaks and the Reeves:
1. Did Gary Austins employment
relationship with Red Oaks and Reeves provide
him with special access to Ruth?
2. Did that special access enable Gary
Austin to engage in a sexual contact with
Ruth?
3. Did Gary Austins employment
relationship with Red Oaks and Reeves provide
Austin with the ability and opportunity to
conceal his sexual contact with Ruth?
4. Did Gary Austins employment
relationship with Red Oaks and Reeves provide
Austin with authority over Ruth?
5. Was Ruth aware of that authority?
6. Did that authority aid or enable
Austin to initiate and continue his sexual
contact with Ruth?
These facts are again merely guidelines
for your consideration. It is not necessary
that every one be present for Gary Austins
sexual contact with Ruth to have been made
possible or facilitated by the existence of
the employment relationship between Gary
Austin and Red Oaks. Furthermore, you are
not to focus solely on the sexual acts
between Gary Austin and Ruth. In determining
whether Gary Austins sexual contact with Ruth
was made possible or facilitated by the
existence of the employment relationship
between Gary Austin and Red Oaks you are to
consider the sexual acts as well as his
conduct related to or leading up to those
acts. You are to consider the totality of
the circumstances, taking into account all of
Gary Austins actions, to determine if Gary
Austins sexual contact with Ruth was made
possible or facilitated by the existence of
the employment relationship between Gary
Austin and Red Oaks.
33 970 P.2d 906, 914 (Alaska 1999).
34 Id. at 914 (emphasis added in Veco).
35 Id. (quoting Meritor Savings Bank v. Vinson, 477 U.S.
57, 76-77 (1986) (Marshall, J., concurring.).
36 Ruth testified: He wanted it to be a secret . . .
[t]elling me not to tell no one because he didnt want to get
fired too soon. Ruth also testified: I knew that he was using
me, but I was like if he is going to use me, I might as well go
for it because . . . he is going to get caught one of these days.
37 716 N.W.2d 220 (Mich. 2006).
38 Id. at 226.
39 See id. at 227. Veco, Inc. v. Rosebrock, 970 P.2d 906
(Alaska 1999), was cited by the Michigan court in this
connection. See Zsigo, 716 N.W.2d at 227 n.28.
40 We note for example that the Restatement (Third) of
Agency (2006) no longer endorses an aided-in-agency theory when
an agent is not acting with apparent authority. See Restatement
(Third) of Agency 7.08 cmt. b (2006).
41 For example, the Vermont Supreme Court has considered
the question in at least two contexts, first in Doe v. Forrest,
853 A.2d 48, 55-69 (Vt. 2004) (reversing a grant of summary
judgment because the aided-in-agency theory could apply to county
sheriffs department whose deputy coerced sex from a store clerk
and emphasizing the significance of law enforcement officers
power over others, their unique access to others as protectors of
citizens, and employers best position to prevent misconduct), and
more recently in Doe v. Newbury Bible Church, 933 A.2d 196 (Vt.
2007) (deciding in answering certified question in federal
diversity action that the aided-in-agency theory does not extend
to church and nonresidential school whose pastor abused a young
student and distinguishing Forrest because, among other reasons,
police have greater power over citizens than a pastor has over
children). See also Hardwicke v. Am. Boychoir Sch., 902 A.2d
900, 903-04, 918-20 (N.J. 2006) (reversing a trial courts
dismissal of claim against residential school of sexual abuse of
child by resident teacher in part because aided-in-agency theory
applied).
42 Veco, 970 P.2d at 914.
43 Id. (quoting College-Town v. Mass. Commn Against
Discrimination, 508 N.E.2d 587, 593 (Mass. 1987)) (emphasis added
in Veco).
44 Id. at 915 (citation omitted).
45 As one of the expert witnesses on assisted living homes
testified in this case:
A: . . . . If youre an employee and youre
in a position of power and youre in a
position of control and the person that
youre working with needs you to be able
to help them live their life and live
the quality of life that they are hoping
to live, than thats all necessary.
Q: From your perspective as an
administrator does it matter the degree
of impairment the client has as to
whether or not sexual contact can occur?
A: I I think just by the virtue of the
relationship of your being in control or
your being in charge and you the person
needing you to fulfill their basic needs
in life, no, theres never an instance
where that sort of thing should be
permitted in a facility and and allowed
to occur.
46 See 12 AAC 44.870(b)(18); 12 AAC 44.895(14).
47 The requested instruction read as follows: (Proposed
No. 37A)
Plaintiff claims that Gary Austin was a
Certified Nurse Aide and that he violated
certain regulations and statutes that govern
Certified Nurse Aides. The defendants claim
that Gary Austin was not acting as a
Certified Nurse Aide when he was employed by
Red Oaks.
If you find that Gary Austin was
employed as a Certified Nurse Aide while
employed at Red Oaks, you must decide whether
Gary Austin violated the following
regulations and statutes. If you do not find
that Gary Austin was employed as a Certified
Nurse Aide while at Red Oaks, you should
disregard the following regulations and
statutes.
2 AAC 44.870.
Unprofessional Conduct
Unprofessional conduct
[of a certified nurse
aide] includes conduct
that could adversely
affect the health and
welfare of a client,
including
. . .
(6) failing to
respect a clients
rights and dignity
regardless of the
clients social or
economic status, the
clients personal
attributes, or
nature of the
clients health
problems or
disability;
(7) neglecting or
abusing a client
physically,
emotionally, or
verbally;
. . .
(18) engaging in
sexual misconduct.
12 AAC 44.895(14).
Definition of sexual
misconduct.
Sexual misconduct means
sexual conduct by a
certified nurse aide
involving a client, and
includes
(A) behavior,
gestures, or
expressions that are
seductive, sexually
suggestive, or
sexually demeaning
to the client;
(B) engaging in, or
attempting to engage
in, sexual
penetration with a
client; sexual
penetration has the
meaning given in AS
11.81.900(b), as
amended as of
October 9, 1998,
adopted by
reference;
(C) engaging in or
attempting to engage
in, sexual contact
with a client;
sexual contact has
the meaning given in
AS 11.81.900(b), as
amended as of
October 1998,
adopted by
reference.
11.81.900(b)(55).
Definition of sexual
contact.
Sexual contact means
(A) the defendants
(i) knowingly
touching,
directly or
through
clothing, the
victims
genitals, anus,
or female
breast; or
(ii) knowingly
causing the
victim to
touch, directly
or through
clothing, the
defendants or
victims
genitals, anus,
or female
breast;
11.81.900(b)(56).
Definition of sexual
penetration.
Sexual penetration means
(A) genital
intercourse,
cunnilingus,
fellatio, anal
intercourse, or an
intrusion, however
slight, of an object
or any part of a
persons body into
the genital or anal
opening of anothers
body;
. . .
(C) each party to
any of the acts
defined as sexual
penetration is
considered to be
engaged in sexual
penetration.
If you decide that it is more likely
true than not true that Gary Austin violated
any part of these statutes or regulations and
that the violation was a legal cause of Ruths
injury, then you are required to find Gary
Austin negligent per se. But if you find
that Gary Austin did not violate any of these
statutes or regulations, then you should
decide whether Gary Austin is liable on the
basis of Plaintiffs other claims for relief.
48 Jury Instruction No. 31 provided:
In order to prevail on any claim,
Plaintiff must establish that Ruth Ayuluk did
not have the capacity to consent to sexual
relations with Gary Austin, or did not
consent to sexual relations with Gary Austin.
A person lacks the ability to consent to
sexual relations if that person suffers from
a mental condition that substantially
prevents the person from being able to
understand either the nature or consequences
of engaging in sexual activity. If the
person understands that he or she is engaging
in intimate or personal sexual behavior which
may have some effect or residual impact upon
the person, upon the persons partner, or upon
others, then the person may have the mental
capacity to consent to sexual relations.
Below are some factors you may consider
in determining whether a person has the
capacity to consent to sexual relations:
(1) Whether the person knows that the
conduct he or she is engaging in is
distinctively sexual;
(2) Whether the person knows that he or
she has the right and ability to engage in
sexual activity;
(3) Whether the person knows that sexual
intercourse may lead to pregnancy and child
birth;
(4) The persons understanding of the use
of birth control;
(5) The persons sexual experience,
including the nature and extent of the
persons sexual relations with others;
(6) The mere fact that a person engaged
in sexual relations does not mean that the
person has the mental capacity to consent to
sexual relations.
Proof of general mental incapacity or
retardation or IQ range or mental age of a
victim does not necessarily prevent a person
from being able to understand the nature and
consequences of a sexual act, but it is a
factor you may consider.
49 Cf. Restatement (Second) of Torts 892C(2) & cmt. e
(1979) (If conduct is made criminal in order to protect a certain
class of persons irrespective of their consent, the consent of
members of that class to the conduct is not effective to bar a
tort action.; The legislative purpose to protect the plaintiff
irrespective of his consent must be clear. . . . In making the
determination as to the purpose, consideration will normally be
given to the fact that . . . there is a significant inequality
between the situation of the party consenting and the party
guilty of the conduct consented to. The necessary purpose will
ordinarily be found when it is apparent that the statute is
intended for the protection of a class of persons who, by reason
of their immaturity, inexperience, or lack of judgment, are
unable to protect themselves against the conduct to which they
are likely to consent.); see also Joseph v. State, 26 P.3d 459,
473-74 (Alaska 2001) (holding that a jailers duty of reasonable
care to protect a prisoner from unreasonable risks of harm
encompasses reasonably foreseeable suicide attempts and that the
intentionality of a prisoners suicide should not altogether
excuse that duty).
Plaintiff takes issues with other aspects of
Instruction No. 31 with respect to the test for capacity and the
factors listed in the instruction. We think that Instruction No.
31 is not erroneous in these respects.
50 Jury Instruction No. 30 provides:
If you decide that Gary Austin
improperly touched Ruth Ayuluk, you must then
decide whether the improper touching caused
Ruth Ayuluk any actual physical or mental
injury, and if it did, you must decide the
amount of money necessary to compensate Ruth
Ayuluk for that injury.
If you decide Gary Austin improperly
touched Ruth Ayuluk but that this did not
cause Ruth Ayuluk any actual physical or
mental injury, you may award Ruth Ayuluk
nominal damages.
51 Plaintiff raises a number of minor points that we do
not discuss because they are either moot or obviously lacking in
merit.
52 See supra parts III.A , III.F.2.
53 Arctic Motor Freight, Inc. v. Stover, 571 P.2d 1006,
1008 (Alaska 1977).
54 Alaska R. Civ. P. 26(b)(1).
55 But a reasonable limitation in terms of the time of
medical treatment could have been imposed.
56 Langdon v. Champion, 745 P.2d 1371, 1373 (Alaska 1987)
(quoting Arctic Motor Freight, 571 P.2d at 1009).
57 Another way is to depose, with subpoenas duces tecum,
the records custodians of healthcare providers who have treated a
plaintiff.
58 Other courts have also recognized this benefit. See,
e.g., Luciano v. Moore, 256 N.Y.S.2d 825, 826-27 (N.Y. Sup. 1965)
(noting defendants contention that (a) they should not be
compelled to accept plaintiffs opinion or statement that the
accident aggravated her medical condition and that (b) records
from her hospital stays would not shed any light upon the
injuries for which she was suing, and requiring plaintiff to
authorize the release of medical records during discovery,
stating that the court would settle any disputes between the
parties as to whether the hospital records relate to the
condition at issue and are admissible at trial).
59 Whether to grant a continuance or permit the late
amendment of pleadings are questions left to the discretion of
the trial court reviewable by this court only for an abuse of
discretion. See Neal & Co., Inc. v. City of Dillingham, 923 P.2d
89, 94 n.6 (Alaska 1996).
60 102 P.3d 282, 294 (Alaska 2004).
61 Hutka v. Sisters of Providence in Wash., 102 P.3d 947,
959 (Alaska 2004).
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