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Waskey v. Municipality of Anchorage (1/12/96), 909 P 2d 342
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
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THE SUPREME COURT OF THE STATE OF ALASKA
JOHN WASKEY, )
) Supreme Court No. S-6549
) Superior Court No.
v. ) 3AN-92-11499 CI
MUNICIPALITY OF ANCHORAGE, ) O P I N I O N
Appellee. ) [No. 4308 - January 12, 1996]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Milton M. Souter, Judge.
Appearances: Eric Chancy Croft, Hedland,
Fleischer, Friedman, Brennan & Cooke,
Anchorage, for Appellant. Stephanie
Galbraith Moore, Assistant Municipal
Attorney, Mary K. Hughes, Municipal Attorney,
Anchorage, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews and Eastaugh, Justices. [Moore,
Justice, not participating.]
I. FACTS AND PROCEEDINGS
Evan Waskey (Evan) was arrested and charged with
assault after engaging in a street fight. He told the arresting
officer that his name was John Evan Waskey, which is actually his
brother's name. Evan then jumped bail and a bench warrant was
issued requiring the arrest of "John Evan Waskey" for failing to
appear. Appellant (John) was arrested on the warrant and
detained for ten days. When the Municipality learned that it was
Evan, not John, who was originally arrested and charged, the
charges against John were dismissed.
John filed a civil action in tort against the Municipal
ity containing counts sounding in negligence, constitutional
violations, and false arrest and false imprisonment. The
Municipality moved for summary judgment on each count. The
superior court granted the Municipality's motion. John appeals.
On appeal, John argues that an arresting officer owes a
duty of care enforceable in tort to ensure that people arrested
are who they say they are, and that the arresting officer
negligently failed to perform this duty. Second, John argues
that his claim for false arrest should not have been dismissed as
there is no municipal immunity for false arrest.
In response, the Municipality argues that negligent
police investigation into the identity of a person arrested
violates no duty enforceable in tort. In addition, the
Municipality argues that no suit for false arrest may be
maintained against the Municipality because the arrest of John
was made pursuant to a facially valid warrant. We agree with the
Municipality on both points and thus affirm.
A. Duty of Care
John argues that police officers owe a duty of care to
properly ascertain and record an arrestee's identity. In his
opening brief he suggests that this duty should be found to exist
based on the factors articulated by this court in D.S.W. v.
Fairbanks North Star Borough School District, 628 P.2d 554, 555
(Alaska 1981).1 We have decided two cases more closely related
to this case which make it unnecessary to resort to the D.S.W.
The first case is Zerbe v. State, 578 P.2d 597 (Alaska
1978). Zerbe was arrested, but the complaint against him was
dismissed before his arraignment. On the day his arraignment was
scheduled, the district judge issued a warrant for Zerbe's
arrest, because no one had informed the judge that the complaint
had been dismissed. Zerbe again was arrested and held for nine
hours before the mistake was brought to light. Zerbe sued the
State for negligence in failing to inform the judge of the fact
that the complaint had been dismissed. The State claimed that it
was immune from suit as the essence of the claim was the false
arrest-imprisonment tort, for which the State is immune under AS
09.50.250(3). Id. at 598. This court accepted Zerbe's argument
that the claim could be maintained, holding
that it was negligent record keeping, rather
than false imprisonment, which caused Zerbe's
injuries. Zerbe's suit is therefore not
barred by the false imprisonment exception to
Alaska's government claims statute, but
instead ought to have been treated in the
same manner as any other negligence case
against the state.
Today, when various branches of govern
ment collect and keep copious records concern
ing numerous aspects of the lives of ordinary
citizens, we are unwilling to deny recourse
to those hapless people whose lives are
disrupted because of careless record keeping
or poorly programmed computers. We see no
justification for immunizing the government
from the damaging consequences of its
clerical employees' failure to exercise due
Zerbe, 578 P.2d at 601 (footnotes omitted). In reaching this
conclusion we noted: "We express no opinion on the question of
whether the state should be protected from suits arising out of
mistakes made by law enforcement officers in pursuit of their
official duties." Id. at 601 n.7.
The present case is the type of case which this court
excluded from its holding in Zerbe. When the arresting officer
entered John's name rather than Evan's name, he made a mistake in
pursuit of his official duty. Thus Zerbe does not directly
control. Moreover, Zerbe has been overruled insofar as it
established a tort of government negligence with respect to
errors underlying the initiation or maintenance of legal actions.
Stephens v. State, Dep't of Revenue, 746 P.2d 908 (Alaska 1987).
In Stephens, the State wrongfully garnished Stephens'
wages to recover back taxes after Stephens had obtained a
discharge in bankruptcy which included the tax obligation. Id.
at 908-09. When the State learned of its mistake it returned the
money it had obtained plus interest. Stephens then sued the
State for negligence and malicious prosecution. As claims for
malicious prosecution are barred under the state tort claims act,
AS 09.50.250(3), we focused on Stephens' claim for "negligence in
executing on a judgment that it 'knew or should have known' was
not valid." Id. at 910. We discussed the D.S.W. factors and
found that the State owed Stephens no duty of care to determine
whether the judgment was still valid before seeking to enforce
Concerning Zerbe, we stated:
We believe that, in general, the state
does not owe its citizens a duty of care to
proceed without error when it brings legal
action against them. To the extent that this
contradicts our decision in Zerbe v. State,
578 P.2d 597, that case is overruled.
Id. at 912 n.5. This statement is applicable to this case. The
arresting officer owed John no duty of care to proceed without
error when he initiated legal action against Evan. Because the
arresting officer owed John no duty of care, no duty was
breached, and no negligence claim can be maintained.
This conclusion is in accordance with numerous cases
from other jurisdictions which have declined to recognize the
duty to conduct criminal investigations in a non-negligent manner
and have therefore refused to recognize a tort of negligent
investigation of a crime. See, e.g., Smith v. State, 324 N.W.2d
299 (Iowa 1982). See also Rodriguez v. Ritchey, 556 F.2d 1185
(5th Cir. 1977), cert. denied, 434 U.S. 1047 (1987) (no federal
common law tort of negligent investigation); Landeros v. City of
Tucson, 831 P.2d 850 (Ariz. App. 1992); Johnson v. City of
Pacifica, 84 Cal. Rptr. 246 (Cal. App. 1970); Montgomery Ward Co.
v. Pherson, 272 P.2d 643 (Colo. 1954); Wimer v. State, 841 P.2d
453 (Idaho App. 1993); and Bromund v. Holt, 192 N.W.2d 149 (Wis.
1964). Compare, City of Kotzebue v. McLean, 702 P.2d 1309
(Alaska 1985) (recognizing police duty to use reasonable care in
responding to life threatening calls).
B. False Arrest and False Imprisonment
"False arrest and false imprisonment are not separate
torts. A false arrest is one way to commit false imprisonment;
since an arrest involves restraint, it always involves imprison
ment." City of Nome v. Ailak, 570 P.2d 162, 168 (Alaska 1977).
The elements of the false arrest-imprisonment tort are (1) a
restraint upon the plaintiff's freedom, (2) without proper legal
authority. Hazen v. Municipality of Anchorage, 718 P.2d 456, 461
(Alaska 1986). In the present case the Municipality obtained a
warrant for the arrest of John Waskey. Thus it had appropriate
legal authority for the arrest. There can be no claim for false
arrest and false imprisonment under these circumstances. See
e.g., Rodriguez, 556 F.2d at 1193; Boose v. City of Rochester,
421 N.Y.S.2d 740, 747 (N.Y. App. Div. 1979); Higgins v. Redding,
580 P.2d 580, 582 (Or. 1977). Where a warrant mistakenly names
the wrong individual based on a negligent investigation, all that
might be available would be a negligent investigation claim.
Since we have concluded that no such claim may be maintained, the
judgment in this case should be AFFIRMED.
1 In D.S.W. v. Fairbanks North Star Borough School
District, this court articulated the factors to be considered in
determining whether an "actionable duty of care" exists:
The foreseeability of harm to the plaintiff,
the degree of certainty that the plaintiff
suffered injury, the closeness of the connec
tion between the defendant's conduct and the
injury suffered, the moral blame attached to
the defendant's conduct, the policy of pre
venting future harm, the extent of the burden
to the defendant and consequences to the
community of imposing a duty to exercise care
with resulting liability for breach, and the
availability, cost and prevalence of
insurance for the risk involved.
D.S.W., 628 P.2d 554, 555 (quoting Peter W. v. San Francisco
Unified School District, 131 Cal. Rptr. 854, 859-60 (Cal. App.
In this case John argues that "the harm to [him] is
foreseeable, the injury is certain, the connection between the
conduct and the injury is close, the policy of preventing future
harm is important, the burden on defendant is relatively light,
the consequences for the community are positive, and it is more
feasible for the Municipality to procure insurance."