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Lane v. City & Borough of Juneau

Supreme Court of Alaska

April 27, 2018

JON GREGORY LANE, Appellant,
v.
CITY & BOROUGH OF JUNEAU, Appellee.

          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 ...


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