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Kooly v. Alaska (5/22/98), 958 P 2d 1106


     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 of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


CORBIN KOOLY, individually    )    Supreme Court No. S-7207
and as Personal Representative)
of the Estate of DANIEL GLENN )
CRAIG, deceased, and SHANNON  )    Superior Court No.
KOOLY,                        )    3KN-94-450 CI
                              )
             Appellants,      )
                              )
     v.                       )    O P I N I O N
                              )
STATE OF ALASKA,              )
                              )
             Appellee.        )    [No. 4990 - May 22, 1998]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
                   Charles K. Cranston, Judge.


          Appearances: Dale J. Walther, Walther &
Flanigan, Anchorage, for Appellants.  Venable Vermont, Jr.,
Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney
General, Juneau, for Appellee.


          Before:   Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.  


          MATTHEWS, Justice.
          


I.   INTRODUCTION
          Three-year-old Daniel Craig drowned when he slipped into
a partially-frozen creek at the bottom of a popular sledding hill. 
We must decide whether the State of Alaska can be held liable for
his death because the sledding hill was part of a state right-of-
way.  We conclude that it cannot because the State does not owe a
duty of care to sledders on its rights-of-way.
II.  FACTS AND PROCEEDINGS
          On December 12, 1993, Shannon Kooly took her son Daniel
and several other children sledding at an area known as the Beaver
Creek sledding hill.  The sledding hill is located in a state
right-of-way adjacent to the Kenai Spur Highway near Beaver Creek.
Beaver Creek runs through an open culvert beneath the highway. [Fn.
1]  The sledding hill parallels the highway and lies perpendicular
to the creek and culvert.  The State acknowledges that the hill
"has been used as a sledding hill by local residents for many
years,"but asserts that it "is not a formal recreational area."
          Daniel and his seven-year-old cousin Billy were both on
the sled when it went into the water through a small hole in the
ice.  Billy was able to escape from the creek; Daniel was swept
underneath the ice and drowned.  Although most of the creek was
frozen, an open area of shallow, running water was visible near the
culvert.  Shannon Kooly remembered seeing the open water but had
not been aware of the smaller hole into which Daniel fell.
          The Koolys filed suit against the State, alleging that
its "negligent failure to close and sign the sledding hill as
unsafe for sledding"was the proximate cause of their son's death.
The Koolys alternatively alleged that the State was negligent in
"failing to eliminate the water hazard at the bottom of the
sledding hill by use of enclosed culverts, or barriers."
          The State moved for summary judgment on the basis that
the Koolys' complaint implicated discretionary state functions,
immune from negligence suits under AS 09.50.250(1).  Relying on
Estate of Arrowwood v. State, 894 P.2d 642 (Alaska 1995) and Earth
Movers of Fairbanks, Inc. v. State, 691 P.2d 281 (Alaska 1984), the
superior court granted the State's motion for summary judgment.  It
ruled that both of the Koolys' negligence claims were barred
because the State

          exercised discretion in its decision not to
close the sledding hill in this case, just as it did in deciding
not to close the Parks Highway in Arrowwood.  It likewise employed
discretion in deciding whether or not to erect a barrier at Beaver
Creek.
          As the parties failed to address the threshold issue
regarding whether the State owed the decedent a duty of care, we
requested supplemental briefing. [Fn. 2]  Having reviewed the
record, the briefs, and the supplemental briefs, we now resolve
this appeal on duty of care grounds.
III. STANDARD OF REVIEW
          In reviewing summary judgment rulings we independently
"determine whether any genuine issue of material fact exists and
whether the moving party is entitled to judgment on the law
applicable to the established facts."  Wright v. State, 824 P.2d
718, 720 (Alaska 1992).  We review questions of law de novo.  See
Kenai Peninsula Borough v. Port Graham Corp., 871 P.2d 1135, 1141
(Alaska 1994).  We may affirm the judgment of the trial court on
any basis appearing in the record.  See Far N. Sanitation, Inc. v.
Alaska Pub. Utils. Comm'n, 825 P.2d 867, 869 n.2 (Alaska 1992).
IV.  DISCUSSION
          Determining whether a duty exists in the type of case
presented is the first analytical step in deciding whether a
negligence action can be maintained. [Fn. 3]  In City of Kotzebue
v. McLean, 702 P.2d 1309 (Alaska 1985), we observed that "'[d]uty'
is not sacrosanct in itself, but only an expression of the sum
total of those considerations of policy which lead the law to say
that the particular plaintiff is entitled to protection."  Id. at
1313 (quoting W. Prosser, The Law of Torts sec. 53, at 325 (4th ed.
1971)). [Fn. 4]  When it is not governed by statute, the existence
of a legal duty is a public policy question.  In D.S.W. v.
Fairbanks North Star Borough School District, 628 P.2d 554, 555
(Alaska 1981), we identified several factors that guide our inquiry
into when a duty should be imposed as a matter of policy:
          [1] The foreseeability of harm to the
plaintiff, [2] the degree of certainty that the plaintiff suffered
injury, [3] the closeness of the connection between the defendant's
conduct and the injury suffered, [4] the moral blame attached to
the defendant's conduct, [5] the policy of preventing future harm,
[6] 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 [7] the availability, cost and prevalence
of insurance for the risk involved.

          In our recent decision of Schumacher v. City and Borough
of Yakutat, 946 P.2d 1255 (Alaska 1997), we applied these factors
in a closely analogous context. [Fn. 5]  In Schumacher, twelve-
year-old Charles Milton sledded down a city street into an
intersection and was injured when struck by a car.  See id. at
1256.  Charles had been repeatedly warned by his father not to sled
on the street, including on the day of the accident.  See id.  The
City was aware that children frequently used that particular street
for sledding.  See id.  In refusing to hold the City liable for
Charles's injuries, we said:
               While several of the factors outlined in
          D.S.W. militate in favor of the existence of a
duty in this case, these factors are outweighed by "the extent of
the burden to the defendant and consequences to the community of
imposing [such] a duty."[D.S.W., 628 P.2d] at 555.   In essence,
Schumacher is arguing that this court should impose liability on
anyone who is aware of another's self-destructive behavior, has any
ability to prevent that behavior, and fails to save the injured
party from his or her own conduct.  Such a holding would transform
the law of negligence from a means whereby a person may recover for
losses caused by a danger which another's unreasonable behavior
created, to a mechanism permitting persons injured by their own
conduct to compel any who failed to prevent that conduct to share
the burdens of their negligence.  We decline to permit such a
result.  Therefore, we hold that a city cannot be liable for
failure to take specific steps to prevent sledding in its streets,
or to ensure that its streets were safe for sledding.  Accordingly,
we conclude that the City owed no duty to protect Charles from the
dangers inherent in sledding into an intersection.

Id. at 1257 (footnotes omitted).
          Guided by Schumacher, we similarly conclude that the
public owner of a highway right-of-way has no duty to make the
right-of-way safe for sledding.  We do not limit our inquiry to the
particular facts of this case.  We take as well a generalized
approach which asks whether a duty of care should be imposed in the
general class of cases involving sledding and similar uses of
public rights-of-way.  "[F]act-intensive inquiries pertain to the
issues of breach, causation, and damages, not the threshold legal
question of whether a duty exists."  Bolieu v. Sisters of
Providence in Wash., 1998 WL 65414 at *9, Op No. 4948 at 22
(Alaska, February 13, 1998).  We now turn to a discussion of the
D.S.W. factors.
          Addressing the first factor, sledding is a common
activity that usually does not result in injury.  Sometimes,
however, people sled where it is dangerous.  This is foreseeable as
are, unfortunately, the injuries and deaths that result. [Fn. 6] 
Turning to the particular facts of this case, the record reveals
that local residents have used the area in question for sledding
purposes for many years.  Prior to Daniel Craig's death, the State
had received no indication that Beaver Creek's proximity to the
sledding hill posed a danger to sledders. [Fn. 7] 
          In regard to the second factor, it is not disputed that
the tragedy which gave rise to this case occurred.
          Concerning the third factor, the lack of a close
connection between the State's conduct and the accident militates
against imposition of a duty here.  The State never formally
dedicated the sledding hill as a recreational area and has never
undertaken a duty to make highway rights-of-way safe for all
potential uses and users. [Fn. 8]  We conclude, as we did in
Schumacher, that the fatal injury sustained by Daniel is more
closely connected with the conduct of those other than the State
than with the State's actions.
          Regarding the fourth D.S.W. factor, we conclude that
there is little if any moral blame that can be assigned to the
State.  The extent of state-owned rights-of-way, the State's lack
of actual notice that Beaver Creek posed a danger to sledders, and
the fact that policy decisions are implicated convince us that the
State's actions cannot be characterized as blameworthy.  
          Further, we are not persuaded that saddling the State
with a duty of care to all users of its extensive rights-of-way
would significantly advance the policy of preventing future harm. 
Will imposing liability on the State for accidents such as this one
make its rights-of-way safer for sledders and other users?  The
answer is probably "no"in view of the innumerable undeveloped
roadside areas attractive for such recreational uses and the
infeasibility of maintaining each area in a safe condition for
sledders.
          Finally and most important to our analysis here is the
sixth factor.  Given the varied terrain in Alaska, it is not
possible to make the thousands of miles of state rights-of-way
adjacent to highways safe for sledding.  Any effort to do so would
be both expensive and futile.  Imposing such a duty would simply
inflict heavy damage judgments on the State with little or no
corresponding increase in public safety. [Fn. 9] 
          We conclude as a matter of policy that the State owes no
duty of care to sledders on highway rights-of-way.  Therefore we
hold that the superior court's grant of summary judgment to the
State was proper.
V.   CONCLUSION
          The superior court's grant of summary judgment in favor
of the State of Alaska is AFFIRMED.


                            FOOTNOTES


Footnote 1:

     Both the highway and the culvert were originally built by the
federal government in the 1950s. 


Footnote 2:

     We decline to entertain additional theories of liability
advanced for the first time by the Koolys in their supplemental
briefs.


Footnote 3:

     See Stephens v. State, Dep't of Revenue, 746 P.2d 908, 910
(Alaska 1987) ("Before we determine whether a statutory immunity
applies to a given case, we will determine whether the State would
be liable to the plaintiff in the absence of the immunity."); see
also Schumacher v. City & Borough of Yakutat, 946 P.2d 1255, 1257
(Alaska 1997); Hawks v. State, Dep't of Pub. Safety, 908 P.2d 1013,
1016-17 (Alaska 1995).


Footnote 4:

     In Busby v. Municipality of Anchorage, 741 P.2d 230 (Alaska
1987), we elaborated on this concept:

          Thus stated, the process of finding that a
defendant owes a duty to a plaintiff is one which involves a fine
balancing of conflicting policies; it is in essence an attempt to
determine whether it would be fair and equitable to require an
individual to act, or to refrain from acting, in a specified manner
so as to avoid undue risk of harm to third persons.  

Id. at 232-33 (citing W. Keeton et al., The Law of Torts sec. 53,
at
356-58 (5th ed. 1984)).


Footnote 5:

     Another recent case applying the D.S.W. factors is Karen L. v.
State, 1998 WL 44053, Op No. 4943 (Alaska, February 6, 1998).


Footnote 6:

     We noted that foreseeability was the single most important
criterion for imposing a duty of care in R.E. v. State, 878 P.2d
1341, 1346 (Alaska 1994) (citing Division of Corrections v. Neakok,
721 P.2d 1121, 1125 (Alaska 1986)).  In this case, however, the
burden and consequences of imposing liability are the most
important considerations.  See Schumacher, 946 P.2d at 1257.


Footnote 7:

     In January 1993 Nicole Goggia was killed at the same sledding
area when she crashed into a tree.  Unknown persons removed the
tree soon after the accident.


Footnote 8:

     The State persuasively argues that maintaining highway rights-
of-way for the widely dispersed, all-season, multifaceted uses that
are made of them is a duty that the State has never undertaken. 
Instead,

          it has simply opened the rights-of-way to
travel by the public.  Never has the state made a decision to span
creeks in the rights-in-way [sic] with bridges, or to sign rights-
of-way (as opposed to roadway surfaces) or to level out the hills
and ravines found in the rights-of-way adjacent to highways.  It
would be too much to expect the state to do this; the Koolys
blithely ignore the budget realities of such an undertaking.


Footnote 9:

     Concerning the seventh D.S.W. factor, the record is silent as
to the availability of insurance.  Although the State may have been
able to obtain liability insurance to compensate injured users of
its rights-of-way, in light of our foregoing analysis we do not
consider this factor to be determinative.