Appeal
from the Superior Court No. 1JU-12-00403 CI of the State of
Alaska, First Judicial District, Juneau, Philip M.
Pallenberg, Judge.
Appearances:
Jeffrey J. Barber, Barber & Associates, LLC, Anchorage,
for Appellant.
Michael L. Lessmeier, Lessmeier & Winters, LLC, Juneau,
for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
MAASSEN, Justice.
I.
INTRODUCTION
A
municipality kept a campground open through the winter to
accommodate the local homeless population. A campground
resident was shot and severely injured. He sued the
municipality for damages, arguing primarily that the
municipality did not do enough to prevent alcohol-related
violence at the campground. He also argued that the
campground's caretaker performed his duties negligently,
that this negligence precipitated the shooting, and that the
municipality was vicariously liable for the caretaker's
actions.
The
superior court granted summary judgment for the municipality
on all these claims. The court concluded that the
municipality could not, under the doctrine of discretionary
function immunity, be liable for any decision requiring
"deliberation" and "judgment." It also
concluded that the municipality was not vicariously liable
for the caretaker's alleged negligence because his
challenged actions were outside the scope of his employment.
The
shooting victim appeals. We conclude that the application of
discretionary function immunity to bar some of his claims was
error, as they related to "operational" rather than
"planning" decisions. We also conclude that genuine
issues of material fact precluded summary judgment on the
shooting victim's claims for negligent supervision and
vicarious liability. We therefore affirm the superior
court's judgment in part, reverse it in part, and remand
the case for further proceedings.
II.
FACTS AND PROCEEDINGS
A.
Facts
The
City and Borough of Juneau (the City) maintained and operated
Thane Campground, which in the summer was home to seasonal
workers in the fishing and tourism industries. The City
usually closed the campground for the winter, but in the fall
of 2009 the City decided to keep it open to accommodate the
local homeless population. According to Heather Mariow, the
City official then in charge of the campground, the winter
residents included alcoholics, the "chronically
unemployed, " and "people [who were not welcome] in
homeless shelters" because of "previous incidents
or violence." Marlow typically hired a caretaker to stay
at the campground through the summer season. The
caretaker's duties included keeping records, collecting
rental fees, performing routine maintenance, and
"interact[ing]" with campers. The caretaker was
supposed to discourage noisy and disruptive behavior, but
this duty stopped short of enforcing City ordinances or
campground rules. The caretaker had no law-enforcement
authority, and in the event of violence, "criminal
activity, " or other "unreasonable behavior"
he was supposed to call the police rather than intervene. The
caretaker could and occasionally did ask troublesome campers
to leave the campground, but he could not enforce these
requests without appealing to City authorities or calling the
police.
Marlow
hired Gordon Valle to serve as caretaker beginning in the
summer of 2007. When the City decided in the fall of 2009 to
keep the campground open, Valle agreed to stay on through the
winter. Marlow had given him specific instructions regarding
the consumption of alcohol at the campground. Although the
campground rules expressly prohibited alcohol, Marlow
testified it was "an understood premise" that Valle
could drink in the privacy of his tent and should "turn
a blind eye" to "minor" drinking by other
campers as long as they did not "caus[e] a problem for
others."
Jon
Lane arrived at the campground in February 2010. On the
evening of March 30, Lane and several other campers began
drinking beer. Valle, believing he was "off the clock,
" joined the group and contributed money to replenish
the beer supply. Valle and Lane both drank until they were
heavily intoxicated; Valle stated that "alcohol... took
[his] judgment away." At some point someone noticed that
Valle had two pistols in his backpack. Valle testified that
"[e]verybody wanted to look at" the guns, so he
"passed them around." According to Lane, Valle and
a camper named Chris Barrios took turns shooting (though
Valle testified he could not remember whether he fired a gun
that night). Lane testified that Valle was "shooting up
in the air and carrying on."
For
reasons not clear from the record, an argument erupted
between Lane and Barrios, who pointed one of Valle's
pistols at Lane's head. Valle begged Barrios to "put
the dang [gun] down" and said, "You're going to
get me in so much trouble." But Barrios told him to
"go while you can, " and Valle ran away. Barrios
then shot Lane in the face. Lane was seriously injured but
survived.
B.
Proceedings
Lane
sued the City for damages under vaguely articulated theories
of negligence and vicarious liability.[1] He alleged, among
other things, that the City created an unreasonable and
foreseeable risk of violence at the campground and then
failed to warn him of the risk or otherwise protect him from
it. He alleged that the City was negligent in hiring and
supervising Valle. He also alleged that Valle himself acted
negligently or recklessly, and that the City was vicariously
liable for Valle's conduct.
The
City moved for summary judgment. It argued that it was immune
from liability under the discretionary function doctrine
because its decisions to keep the campground open for the
winter and to hire a particular individual as caretaker were
"discretionary" actions involving
"judgment" and "deliberation." The City
argued in the alternative that it could not be held liable
for the consequences of Barrios's intentional criminal
act, and that Lane could not maintain a premises liability
(or "failure to warn") claim because he was
"solely responsible for his own safety." Finally,
the City argued that Valle was an independent contractor
rather than a City employee, and that the City could not be
liable for his actions on the evening of the shooting because
they were outside the scope of his contractual duties. Lane
argued in opposition that discretionary function immunity did
not apply to "operational" conduct like
Marlow's supervision of Valle, that Valle was a City
employee, and that the premises liability claims had merit
because alcohol use at the campground created a foreseeable
risk of violence.
The
superior court agreed with the City and granted summary
judgment on all of Lane's claims. Lane appeals, making
two principal arguments: (1) that the superior court
construed the City's immunity under AS 09.65.070(d)(2)
too broadly; and (2) that the court erred when it concluded
that Valle was not acting within the scope of his employment
at the time of the shooting.
III.
STANDARD OF REVIEW
"We
review grants of summary judgment de
novo."[2] The party seeking summary judgment bears
the initial burden of proving that there are no genuine
issues of material fact and that it is entitled to judgment
as a matter of law.[3] "Once the moving party has made that
showing, the burden shifts to the non-moving party 'to
set forth specific facts showing that he could produce
evidence reasonably tending to dispute or contradict the
movant's evidence and thus demonstrate that a material
issue of fact exists.' "[4] Alaska has a "lenient
standard for withstanding summary judgment,
"[5] and we will affirm a grant of summary
judgment only when "no reasonable person could discern a
genuine factual dispute on a material
issue."[6]
IV.
DISCUSSION
A.
"Discretionary Function" Municipal Immunity Is
Provided By AS 09.65.070.
1.
The City enjoys immunity under AS 09.65.070(d)(2) for
"planning" decisions; it does not enjoy immunity
for "operational" acts.
Alaska
Statute 09.65.070(d)(2) provides that "[a]n action for
damages may not be brought against a municipality or any of
its... employees if the claim... is based upon the exercise
or performance" of "a discretionary function or
duty." The superior court dismissed several of
Lane's claims against the City because it concluded that
this "discretionary function" immunity extends to
any action requiring municipal employees to exercise
"personal deliberation" and "judgment, "
relying on Pauley v. Anchorage School
District[7]
However,
a municipality's immunity under AS
09.65.070(d)(2) is different from, and narrower than, a
municipal employee's immunity under the same
statute and in the same circumstances.[8]
"Discretionary" has a different meaning in the two
different contexts. While municipal employees enjoy personal
or "official" immunity for any action involving
"deliberation" and "judgment,
"[9] municipalities themselves enjoy immunity
only for "planning" decisions; they remain
potentially liable for "operational" decisions,
that is, those which do not involve "policy
considerations" and which comprise the "day-by-day
operation[] of the [municipal]
government."[10] Because some of our past decisions do
not clearly distinguish between these two different yet
closely related forms of discretionary function immunity, we
take this opportunity to clarify the scope of municipal
immunity under AS 09.65.070(d)(2). We begin with the history
of the statute.
The
Territory of Alaska had a statute waiving municipal immunity
that continued after statehood in amended form. Without
qualification or exception, the statute recognized tort
claims "against any incorporated town ... in its
corporate character."[11] We interpreted this statutory
waiver broadly, holding, for instance, that municipalities
could be held liable for the negligence of their
firefighters.[12] And we drew no distinction between
"governmental" or "proprietary"
functions.[13] Put simply, Alaska municipalities
"did not enjoy any immunity from tort liability"
during this time.[14]
This
law remained in effect until 1977, when the legislature,
responding to concerns that municipalities' ability to
govern was hampered by threats of tort liability, partially
restored municipal immunity.[15] The 1977 enactments included
the language now codified at AS 09.65.070(d)(2), granting
immunity for "discretionary"
functions.[16] The current municipal immunity statute
closely resembles the Alaska Tort Claims Act, [17] which
protects the State from certain types of damages claims. Both
statutes grant immunity for "discretionary"
governmental functions; a difference is that the Tort Claims
Act immunizes only the governmental entity (the State), while
the municipal statute includes within its scope the
"agents, officers, or employees" of a
municipality.[18] For the State, official immunity for
individuals came by way of the courts' recognition of the
doctrine as an addition to the statutory protection for the
governmental entity, [19] whereas for municipalities, both
immunity for the entity and immunity for the individual are
addressed expressly by the immunity statute.
Under
the Tort Claims Act, the State's immunity does not extend
to all discretionary actions, at least as the term
"discretionary" is commonly defined.[20] In State
v. Abbottwe observed that the analogous discretionary
function exception to the Federal Tort Claims Act had
"been read so broadly on occasion ... as to almost
reinstate complete immunity."[21] We instead favored how
the California Supreme Court, among others, had explained the
exception: specifically that because "almost any act,
even driving anail, involves some discretion, " we
should reject "a simply semantic inquiry into the
meaning" of the word "discretionary" and
instead focus "on the policy behind the discretionary
immunity doctrine for guidance in determining whether a given
act was discretionary or ministerial."[22] We approved
of Justice Jackson's dissenting view - in a case
involving the Federal Tort Claims Act-that "there is no
good reason to immunize the Government or its officers from
responsibility for their acts, if done without appropriate
care for the safety of others."[23] Balancing the policy
goals of the Tort Claims Act against our concern that a
literal interpretation would excuse any form of governmental
carelessness, we concluded that the State's planning
functions enjoy immunity under the Act while its operational
functions do not.[24] And because the municipal tort claims
statute, AS 09.65.070(d)(2), is analogous to the Tort Claims
Act at AS 09.50.250(1), we have concluded that the
distinction between planning and operational functions
applies in the municipal context as well.[25]
We have
explained that planning decisions generally involve "the
formulation of basic policy, "[26] while operational
decisions either leave "no room for discretion or
involve only discretion free from policy
considerations."[27] This test admittedly requires
"delicate judgment" to apply.[28] There is
often no bright-line distinction between "planning"
and "operation."[29] Courts must therefore inquire
carefully into "the considerations that enter into"
a government decision, and "appreciate]... the
limitations on [a] court's ability to reexamine"
executive action.[30] But while policymaking is an immune
governmental function, the implementation or execution of
policy is not; the government remains potentially liable for
mistakes in its "normal day-by-day
operations."[31] For example, "[o]nce the basic
decision to maintain [a] highway in a safe condition
throughout the winter is reached, the [S]tate" does not
have "discretion to do so
negligently."[32]
Municipal
employees enjoy a different form of personal immunity under
AS 09.65.070(d)(2). We have observed that the statute, in
extending immunity to agents, officers, or employees,
establishes "a type of official
immunity."[33] And this official immunity is distinct
from the sovereign immunity enjoyed by government
entities.[34] Both forms of immunity employ the term
"discretionary function, " but
"discretionary" carries a different meaning in the
two different contexts.[35] For purposes of official immunity, we
have defined "discretionary acts" as those
requiring personal deliberation and judgment, and we have
contrasted these with "ministerial acts, " which
"amount 'only to an obedience of orders, or the
performance of a duty in which the officer is left with no
choice of his own.' "[36] Municipal employees enjoy
qualified immunity for discretionary acts but not for
ministerial acts.[37] And because an individual employee's
official immunity extends to all acts requiring personal
deliberation and judgment, official immunity covers a greater
range of actions than the discretionary function immunity of
government entities; many acts are not planning or policy
decisions and yet require personal deliberation and judgment
on the part of the individual employee.[38]
The
appropriate immunity analysis under AS 09.65.070(d)(2)
therefore depends on whether the plaintiff brings a claim
against a municipality or against its agent or employee.
Either claim is governed by the same words in the same
statute, but for the claim against the municipality we ask
whether the challenged action carried out a planning or
operational decision, [39] whereas for the claim against the
municipal employee we ask whether the decision in question
involved personal deliberation and judgment.[40]The difference
between sovereign immunity and official immunity
"reflects the differing policy considerations which
underlie the two forms of immunity."[41]Discretionary
function immunity for the State and municipalities serves
three main policy goals: (1) respecting the separation of
powers by limiting judicial oversight of coequal branches of
government; (2) sparing courts the burden of investigating
and evaluating the wisdom of executive or legislative
decisions; and (3) protecting public resources from the
demands of unlimited government liability.[42] We have
adopted the view, however, that these objectives do not
justify absolute immunity, and we have generally adhered to
the "basic policy" that "when there is
negligence, " liability should be the "rule"
and "immunity... the exception."[43]
Official
immunity responds to different policy concerns and protects
different actors and interests.[44] Unlike sovereign
discretionary function immunity, which insulates the
policymaking functions of government, official discretionary
function immunity protects individual government agents from
the deterrent effects of personal liability.[45] We accept the
traditional justification for official immunity, which
acknowledges that the threat of individual liability, along
with the attendant burdens of litigation in an individual
capacity, tends to "dampen the ardor of all but the most
resolute, or the most irresponsible, in the unflinching
discharge of their duties."[46]
But
government employees are not completely insulated from the
consequences of their actions. Official immunity in Alaska is
qualified, not absolute; it applies only "when
discretionary acts within the scope of the official's
authority are done in good faith and are not malicious or
corrupt."[47] And we have not extended the personal
immunity of government employees to automatically immunize
their employers, having rejected the argument that the
individual employee will be unacceptably restrained by the
prospect of potential liability on the part of the
employer.[48] We have instead adopted the view of the
California Supreme Court that if "a deterrent effect
takes hold" because of a government entity's
potential liability, "it may be wholesome, "
because "the potential liability of a governmental
entity, to the extent that it affects primary conduct at all,
will. . . influence public employees" by
"promot[ing] careful work."[49]
Some
other jurisdictions follow a different approach, extending
the government employee's official immunity vicariously
to the government employer.[50] But we have held that what
"constitutes a discretionary function for the purposes
of official immunity" is not the same as "what
constitutes a discretionary function for the purposes of
sovereign immunity."[51] And as discussed above,
sovereign immunity and official immunity serve different
interests and promote different policy objectives; the
difference between the two forms of immunity "is more
than mere semantics."[52] We therefore decline to follow
these other jurisdictions, and we reiterate here that a
municipality does not automatically share the protection of
its employees' personal immunity.
Our
cases have not always clearly distinguished between the two
forms of discretionary function immunity. In at least two
cases cited by the superior court, we analyzed claims against
government entities using language appropriate to official
rather than sovereign immunity, asking whether the actions in
question involved "deliberation" and
"judgment" and concluding that, because they did,
the sovereign itself was immune.[53]Refraining the analysis is
unlikely to have changed the results in those two cases, but
we disavow their implication that when individual municipal
employees act with discretion, the municipality is
vicariously immune.
Applying
this discussion to this case, we reject the City's
argument that the challenged actions it took through Marlow,
its employee, are immune under AS 09.65.070(d)(2) because she
acted with "deliberation" and "judgment."
Official immunity could protect her if she were an individual
defendant. But Lane did not sue Marlow; he sued the City. A
claim against a municipality or the State raises an issue of
sovereign immunity, and the government defendant is immune
only if the claim challenges a "planning"
decision.[54] Thus, the superior court should have
considered whether the actions complained of - Marlow's
allegedly inconsistent instructions regarding alcohol use and
her alleged "failure to properly supervise" Valle -
were "planning" or "operational, " not
whether they involved Marlow's "deliberation"
and "judgment." We consider this question next.
2.
It was error to dismiss Lane's negligent supervision
claim on the basis of discretionary function
immunity.
To
reiterate, "planning" generally refers to
policymaking while "operational" generally refers
to the implementation of policy or the "day-by-day
operations of the government."[55] Lane's claims appear
to involve both. According to Lane, Marlow gave Valle
"mixed messages" about alcohol use at the
campground. The campground rules strictly prohibited alcohol,
but Marlow testified there was a common understanding that
Valle could drink in the privacy of his tent and should
ignore "minor" drinking by others as long as it did
not bother anyone else. Lane argues that Marlow's
instructions misled and confused Valle, and that as a result
Valle did not "intervene" to "shut down [the]
drinking part[y]" at which Lane was shot. Lane argues
that Marlow's allegedly negligent supervision of Valle
was "an operational failure" for which the City is
liable.
Marlow's
decision to allow some limited drinking at the campground
required her and other City officials to evaluate different
policy goals and balance competing interests, including the
campers' safety on the one hand and their personal
autonomy and privacy on the other. The City also had to
consider how operating the campground through the winter
would affect its limited financial resources. Marlow
testified that the City decided to keep the campground open
in fall 2009 after a property owner evicted a large number of
homeless people who then had "no place to go"
because the local shelters were full. The City Manager
decided that keeping the campground open was "the best
of the limited alternatives."
Once
the City made this decision, it was Marlow's
responsibility to "manage" the winter campground
and its population. The City chose not to provide additional
services such as security patrols, because "making a
meaningful change in the services offered would involve
considerable expense at a time when the City had many other
financial needs." Besides, Marlow testified that the
City intended to "provide a housing option for people,
" not "run[] some sort of detention center."
She therefore determined that strict prohibition of alcohol
was neither practicable nor desirable, and she chose not to
enforce the rule prohibiting alcohol consumption against
people who weren't "causing any problem."
We have
observed that "[i]mmunity remains if the injury results
from a deliberate choice in the formulation of
policy."[56] Marlow's decision concerning alcohol
use at the campground was the result of deliberation and took
into account various interests and objectives. We conclude
that the decision to allow "minor" alcohol
consumption so long as it did not "caus[e] . . .
problem[s]" was a planning decision for which the City
is immune.
But
once the City decided to leave the campground open and allow
some drinking in limited circumstances, it did not have the
discretion to carry out these choices
negligently.[57] Accordingly, we conclude that the City
could be liable for Marlow's supervision of Valle,
including her allegedly inconsistent instructions regarding
alcohol use. The routine supervision of personnel generally
falls under the heading of the "day-by-day"
business of government, for which the City does not enjoy
sovereign immunity.[58]And we do not think that allowing
Lane's negligent supervision claim to proceed on the
merits would frustrate the purposes of sovereign immunity.
The claim does not, for instance, require a court to
second-guess the wisdom of allowing "minor" alcohol
consumption; it merely asks whether Marlow exercised
reasonable care in carrying out that policy.[59] Such a matter
is well within the expertise of Alaska trial
courts.[60] And our decision here will not expose
municipalities to excessive or unwarranted liability, because
the City's discretionary policymaking functions remain
insulated from judicial review.[61]
We
conclude that Lane's negligent supervision claim,
alleging that Marlow's explanation of the campground
alcohol policy to Valle was inconsistent and confusing,
concerns an operational matter rather than a planning
decision. We therefore reverse the superior court's grant
of summary judgment on this issue and remand for further
proceedings.[62]
B.
There Are Genuine Issues Of Fact As To Whether Valle Was
Acting Within The Scope Of His Employment.
Lane
also argues that the superior court erred in concluding that
Valle's actionable conduct - specifically Valle's
"failure" to disperse the "drinking
party" at which Lane was shot - did not fall within the
scope of Valle's employment with the City.[63] The superior
court concluded that Valle was "simply socializing
outside the scope of his work responsibilities, " and
that he did not intend by his conduct to "promot[e] the
[City's] interests." But Valle's job duties as
caretaker arguably required him to socialize with other
campground residents. And while we agree that Valle neglected
some of his work ...