Summary
holding that a theory of recovery which was not included in a complaint, briefed or argued at trial, and was not the subject of any ruling by the superior court, would not be considered for the first time on appeal
Summary of this case from Jackson v. NangleOpinion
Nos. 2564 and 2565.
April 10, 1979.
Appeal from the Superior Court, Third Judicial District, Anchorage, Ralph E. Moody, J.
Before BOOCHEVER, C.J., and RABINOWITZ, CONNOR and MATTHEWS, JJ.
ORDER ON REHEARING
We have granted appellant's petition for rehearing.
In our opinion in this case, reported in 575 P.2d 760 (Alaska 1978), we relied upon Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), together with Williford v. California, 352 F.2d 474 (9th Cir. 1965), for our conclusion that the University of Alaska is not a "person" which may be held liable in a suit under 42 U.S.C. § 1983.
That statute provides in pertinent part:
Every person who, under color of any statute . . . custom or usage of any State . . causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . .
While this case was pending on petition for rehearing, that portion of Monroe v. Pape, supra, on which we relied was overruled in Monell v. New York Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In view of this, we have concluded that our earlier opinion should be modified so that, in accord with Monell, the University of Alaska can be held liable in a suit under 42 U.S.C. § 1983.
Upon remand, the Superior Court shall be guided by the principles set forth in Monell, supra, and our earlier opinion, 575 P.2d at 766, shall be considered modified accordingly.
BURKE, J., not participating.