Alaska Employment Law

The Alaska Supreme Court last Friday issued an opinion in a personal injury case that addressed many employment-law issues. 

In Ayuluk v. Red Oaks Assisted Living, Inc., Op. No. 6337 (Alaska Feb. 20, 2009), the conservator of a brain-injured woman alleged, in part, that the residential home owners had negligently hired and retained the employee who engaged in sex with the ward.  An Anchorage jury (Peter Michalski presiding) awarded compensatory damages of $1,000 and punitive damages of $6,500.  The Supreme Court (unanimously, per Warren Matthews), reversed and remanded on most issues. 

On the employment issues, the Court ruled as follows:

1)  Expert witness on negligent hire and retention:  Michalski erred, Matthews said, in barring the conservator from presenting testimony from Suzan Armstrong (former state deputy ombudsperson for Long Term Care) regarding negligent retention of employees in residential facilities.   Note that Alaska Evidence Rule 702(c) and Alaska Statute 09.20.185 bar non-certified professionals from testifying on the standard of care for professional negligence.

2)  Risk of hiring overqualified employees:  The Court held the caregiver (who was sued individually) to a higher-than-normal standard because a) he held a CNA license and b) the State’s CNA regulations bar any sexual contact (even consented) with a patient.  Whether the job description required a CNA license was irrelevant, the Court said, if the employer hired him because of his higher qualifications, or if he believed he was acting as a CNA.  Op. at p. 33.

3)  Employer’s duty to monitor employees:  Michalski also erred in barring the conservator from presenting evidence that the employer retained the caregiver despite notice that he’d viewed pornography at  an earlier place of work.  “Viewing pornography on the job is also conduct that could reasonably alert supervisors of the need for further inquiry and supervision.”  Op. at p. 15.  But Michalski properly barred evidence of alcoholic misconduct and poor job performance at that earlier job, too, because it didn’t show “the employee’s propensity for the [sexual] conduct which caused the injury.”  Id.

The Court did hold that Michalski should have admitted evidence of the caregiver’s sexual misconduct toward fellow employees - not because it showed a propensity toward assaulting the plaintiff, but because it went to the caregiver’s assertion that he loved the plaintiff. 

Testimony of advances that Austin made toward other residents could reasonably case 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 Austin’s credibility with respect to his declaration of love for Ruth in light of contemporaneous sexual advances he made toward other residents.

Op. at p. 17.

4)  Vicarious liability for sexual misconduct:  The “aided-in-agency” standard set out in VECO, Inc. v. Rosebrock, 970 P.2d 906 (Alaska 1999), is not the only test for vicarious liability, Matthews says.  It’s an alternative to, and not a subset of the “scope of employment” test.  Moreover, the ”aided-in-agency” standard applies not only to a supervisor, but to a non-supervisory employee who “has by reason of his employment  substantial power or authority to control important elements of a vulverable tort victim’s life or livelihood.”  Op. at p. 26.  The court determines whether the employee has such power, though the Supreme Court here held, apparently as a matter of law, that the offending staff caregiver had such power over the brain-injured resident.  Op. at p. 26.  The Court suggests that not many non-supervisors, at least outside the special circumstances illustrated by this case, will have such power that makes the employer vicariously liable under this alternative test.

5)  Other:  Other parts of the opinion discuss propensity evidence, admissibility of a victim’s sexual history, and breadth of medical releases.

Richard Vollertsen and Christopher Slotee of Atkinson, Conway & Gagnon represent the conservator-plaintiff.  Peter Maassen of Ingaldson, Maassen & Fitzgerald, and John Pharr, represent various defendants.  All counsel practice in Anchorage.