Haight v. City & Borough of Juneau

          Appeal from the Superior Court of the State of Alaska, First Judicial District No. 1JU-14-00706 CI, Juneau, Philip M. Pallenberg, Judge.

          Mark Choate, Choate Law Firm LLC, Juneau, for Appellant.

          Lael A. Harrison, Faulkner Banfield, P.C., Juneau, for Appellee.

          Before: Bolger, Chief Justice, Winfree, Stowers Maassen, and Carney, Justices.

          OPINION

          WINFREE, JUSTICE.

         I. INTRODUCTION

         A minor died in a motorized watercraft accident on a lake managed in part by a municipality. The minor's mother sued, claiming that the municipality negligently failed to take measures to ensure safe operation of motorized watercraft on the lake. The municipality sought summary judgment based on discretionary function immunity, which the superior court granted. Because the superior court correctly applied the doctrine of discretionary function immunity, we affirm its decision.

         II. FACTS AND PROCEEDINGS

         A. Facts

         Auke Lake sits within the City and Borough of Juneau. The State owns the lake but shares management authority with the City. State law at the relevant time allowed motorized watercraft on the lake as long as they did not degrade or damage the lake or its surroundings.^[1] A State land use plan also covered the lake, but the plan did not appear to regulate watercraft use.^[2] Like the State's land use plan, the City's comprehensive land use plan required only that the lake be managed to preserve the area's natural features.^[3] The City did not have a separate land use plan for the lake.

         In 2006 the State took the position that "conflicts between lake users, property owners and residents are properly addressed through local government control and enforcement." In 2007 the City passed an ordinance governing motorized watercraft use on the lake, restricting areas and hours of operation, size, and wake height. The ordinance did not impose speed limits, horsepower limits, or traffic patterns, although the City received comments and testimony urging that the ordinance do so.

         In 2009 the City's planning department recommended replacing a gravel boat launch near the lake's outlet with a concrete launch near a visitor parking lot. The accompanying report acknowledged comments urging the department to consider possible increased motorized watercraft use and accompanying safety concerns, but the report stated that the City assembly would have to enact an ordinance to address public safety issues created by any additional traffic. The recommendation was approved, and the new boat launch was completed in 2011.

         In June 2012 teenager Savannah Cayce and a friend were riding in an inflatable raft pulled by a motorized watercraft on the lake. The operator, Robert Herring, later stated that he was traveling about 40 to 45 miles per hour. Shawn Miller was operating another motorized watercraft nearby, making "deep, quick turns to try and roll" it. Herring turned his watercraft, causing the inflatable raft carrying Cayce to swing into Miller's watercraft. Cayce suffered a serious head injury and died two days later.

         B. Proceedings

         Cayce's mother, Sunny Haight, as personal representative of Cayce's estate, sued the City, Herring, and Miller for negligence, seeking damages for Cayce's suffering and wrongful death. Haight contended that the City owed a duty of care to lake users and that it breached its duty by failing to take adequate measures to reduce safety hazards created by motorized watercraft. She asserted that the City should have established a speed limit, a horsepower limit, and traffic patterns for motorized watercraft and should have posted warning signs regarding safe use of the lake. The City sought summary judgment based on discretionary function immunity, which bars claims for damages against municipalities for acts and omissions falling within discretionary governmental functions.^[4] The superior court granted the City summary judgment, reasoning that whether to take the measures Haight suggested was a policy decision to be made by the City assembly and that such a policy decision was protected by discretionary function immunity.

         Haight appeals.

         III. STANDARD OF REVIEW

         "We review a grant of summary judgment de novo, 'affirming if the record presents no genuine issue of material fact and if the movant is entitled to judgment as a matter of law.' "^[5] "In conducting de novo review, we will 'adopt the rule of law that is most persuasive in light of precedent, reason, and policy.' "^[6]

         IV. DISCUSSION

         A. Overview Of Discretionary Function Immunity

         Alaska law generally allows damages claims against municipalities, but the law bars claims for damages "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty by a municipality or its agents, officers, or employees."^[7] A companion statute waives the State's sovereign immunity except for claims involving discretionary functions.^[8] We have adopted the "planning-operational test" to distinguish decisions that are protected by discretionary function immunity from those that are not.^[9] We have articulated the test as follows:

Under the "planning-operational" test... decisions that rise to the level of planning or policy formulation will be considered discretionary acts which are immune from tort liability, whereas decisions that are merely operational in nature, thereby implementing policy decisions, will not be considered discretionary and therefore will not be shielded from liability.^[10]

         This test is somewhat imprecise;^[11] "almost any act, even driving a nail, involves some 'discretion,' "^[12] and we have stated that decisions made while implementing a planning decision are not necessarily unprotected operational decisions.^[13]Whether a decision is planning or operational depends on the particular circumstances.^[14]

         "We look to the purposes underlying discretionary function immunity" to guide our application of the planning-operational test.^[15] "Discretionary function immunity 'preserve[s] the separation of powers'" by guarding against judicial intrusion on the policy-making powers committed to the legislative and executive branches;^[16] these powers include assessing the costs and benefits of a proposed course of action, budgeting, and distributing scarce government resources.^[17] Because policy questions such as where to allocate resources or which course of action to follow may arise after the initial planning decision is made, we distinguish between decisions involving" 'formulation of basic policy' including consideration of financial, political, economic, or social effects of the policy" and those involving "[n]ormal day-by-day operations of the government."^[18] The former are protected planning decisions; the latter are unprotected operational decisions.^[19] In other words, the planning-operational test requires courts to "isolate those decisions sufficiently sensitive" to separation of powers concerns and "protect those decisions worthy of protection without extending the cloak of immunity to an unwise extent."^[20]

         Discretionary function immunity similarly prevents the judicial branch from adjudicating the soundness of policy decisions that it lacks the institutional capacity to make.^[21] And discretionary function immunity protects public resources against unforeseeable and overwhelming liability that might result from making governmental policy decisions generally subject to damages.^[22]

         Again, whether a decision is planning or operational depends on the particular circumstances. At one end of the spectrum, we consistently have held that when the government does not have an affirmative duty to act, it cannot be held liable for the decision not to act.^[23] We have held that, absent a plan or regulation dictating otherwise, decisions not to install safety devices such as highway guardrails or sequential traffic lights at specific locations are protected planning decisions.^[24] The decision not to act is protected because limited budgets entail tradeoffs between competing needs - decisions involving basic policy ...