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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Guerrero v. Alaska Housing Finance Corp. (8/3/00) sp-5301

Guerrero v. Alaska Housing Finance Corp. (8/3/00) sp-5301

     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.


minor child (D.O.B. 9-8-89),  )
by his next friend and        )    Supreme Court No. S-8667
CRISTIAN GUERRERO and         )    Superior Court No.
JUANA GUERRERO, individually, )    3AN-96-8506 CI
               Appellants,    )
          v.                  )    O P I N I O N  
ALASKA HOUSING FINANCE        )    [No. 5301 - August 4, 2000]
FACILITIES,                   )
               Appellees.     )   

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.

          Appearances:  Phillip Paul Weidner, Weidner &
Associates, Inc., Anchorage, for Appellants.  Steven D. DeVries,
Assistant Attorney General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee Alaska Housing Finance
Corporation.  William F. Morse, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee Department of Transportation and Public Facilities.

          Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.

                    BRYNER, Justice.I.   INTRODUCTION
          Alexander Guerrero was hit by a car while he crossed a
busy street near a public housing complex where he and his family
were living.  His parents sued the Alaska Department of
Transportation and Public Facilities, which built and maintained
the street, and the Alaska Housing Finance Corporation, which owns
and operates the housing complex, alleging negligent design,
construction, maintenance, and failure to warn.  The superior court
dismissed the Guerreros' complaint for failing to state a viable
claim, ruling that the department was entitled to discretionary
function immunity and that the corporation owed no duty to protect
Alexander from injury occurring off the housing complex premises. 
We reverse, finding the complaint legally sufficient on its face
because it alleges the negligent performance of at least some
potentially non-discretionary functions by both defendants under
circumstances requiring them to exercise due care toward the
          Five-year-old Alexander Guerrero was hit by a car and
severely injured as he attempted to cross C Street near its
intersection with 22nd Avenue in Anchorage.  The section of
C Street where the accident occurred is part of a traffic couplet
on A and C Streets (the A/C Couplet) [Fn. 1] that was built by the
Alaska Department of Transportation and Public Facilities (the
department).  At the time of the accident, Alexander and his family
lived at the Loussac Family Housing Complex (the Loussac Complex),
a low-income housing project sponsored by the Alaska Housing
Finance Corporation (the corporation), a public corporation within
the Alaska Department of Revenue. [Fn. 2]  The Loussac Complex is
directly adjacent to the accident scene, situated between A Street
on the east, C Street on the west, 20th Avenue on the north, and
22nd Avenue on the south.
          The Guerreros sued the department and the corporation,
alleging negligence in the design, construction, and maintenance of
the A/C Couplet and related pedestrian systems in the vicinity of
C Street and 22nd Avenue as they relate to the occupants of the
Loussac Complex.  They also alleged that the corporation had a duty
as a landlord to ensure that conditions on its property did not
subject tenants to hazards on C Street.
          The department and the corporation moved to dismiss under
Alaska Civil Rule 12(b)(6).  The department claimed discretionary
function immunity under AS 09.50.250(1).  The corporation argued,
first, that its duty as a landlord did not extend beyond its
property and, second, that it, too, was immune under the
discretionary function statute.
          The Guerreros moved for discovery, but the defendants
opposed their efforts and moved to stay all discovery pending a
decision on their motions to dismiss.  The Guerreros then moved to
have the superior court visit the accident scene.  The court denied
the Guerreros' motions, stayed discovery, and eventually granted
the defendants' motions to dismiss, expressly refusing to consider
information outside the pleadings.
          In response to the dismissal, the Guerreros moved for
reconsideration and for leave to file an amended complaint.  The
court denied reconsideration but allowed the Guerreros to amend
their complaint.  Their amended complaint elaborated on their
initial claims, listing eleven ways in which the Guerreros claimed
that each defendant negligently breached its duty of care toward
          After filing their amended complaint, the Guerreros again
moved for discovery; the superior court denied their motion.  In
the meantime, the defendants had moved to dismiss the amended
complaint.  After hearing oral argument, the superior court granted
the defendants' motions and dismissed the case under Alaska Civil
Rule 12(b)(6), concluding that the amended complaint failed to
state a claim upon which relief could be granted against the
department or the corporation.  The court ruled that the department
was entitled to discretionary function immunity under
AS 09.50.250(1) because "installing or not installing safety
features in specific areas is precisely the type of decision the
doctrine of sovereign immunity for discretionary acts is meant to
protect."  The court ruled that the corporation had no duty to
protect the Guerreros from traffic hazards, finding it "firmly
established that the duty of safeguarding children against obvious
dangers off a landlord's property does not fall on the landowner."
The Guerreros appeal.
     A.   Standard of Review
          Alaska Civil Rule 12(b)(6) allows early dismissal of a
complaint for "failure to state a claim upon which relief can be
granted."  Invoking this provision, the superior court concluded as
a matter of law that the Guerreros' amended complaint was
insufficient on its face.  The court declined to consider extrinsic
materials offered by the Guerreros.  We therefore confine our
review to the face of the amended complaint. [Fn. 3]  
          We review a Rule 12(b)(6) dismissal de novo, [Fn. 4]
deeming all facts in the complaint true and provable. [Fn. 5] 
Because complaints must be liberally construed, a motion to dismiss
under Rule 12(b)(6) is viewed with disfavor and should rarely be
granted. [Fn. 6]  To survive, "the complaint need only allege a set
of facts 'consistent with and appropriate to some enforceable cause
of action.'" [Fn. 7]  Thus, "[a] complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." [Fn. 8] 
     B.   It Does Not Appear Beyond Doubt that the Department and
the Corporation Owe the Guerreros No Actionable Duty.
          This court ordinarily considers whether a duty exists
before addressing immunity questions. [Fn. 9]  Whether an
actionable duty of care exists "is essentially a public policy
question" involving
          the foreseeability of harm to the plaintiff,
the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant's conduct and the
injury suffered, the moral blame attached to the defendant's
conduct, the policy of preventing 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.[ [Fn. 10]]
          1.   The department's duty of care is not affected by
Alexander Guerrero's potential misuse of C Street. 
          Although the superior court evidently assumed that the
department owed the Guerreros a duty of due care in the design,
construction, and maintenance of the A/C Couplet, the department
now claims that it owes no duty to "children whose guardians do not
prevent them from running out into traffic."  It analogizes this
case to Schumacher v. City and Borough of Yakutat, in which we
recently held that a city had no duty "to take specific steps to
prevent sledding in its streets, or to ensure that its streets were
safe for sledding." [Fn. 11]  Here, as in Schumacher, the
department argues, a child decided to misuse the public street, and
therefore no duty arose with respect to his conduct. [Fn. 12] 
          But while the department suggests that Alexander Guerrero
impermissibly "darted onto C Street" and was "jaywalking into the
paths of oncoming traffic," it neglects to support these claims
with facts or law.  The amended complaint --  the only source of
facts relevant here -- does not establish exactly how Alexander
attempted to cross C Street; nor does it permit a conclusive
inference that his conduct was illegal.  The complaint does
indicate that there was no crosswalk at C Street and 22nd Avenue.
But the department cites no authority establishing that walking
across C Street at or near this intersection without the benefit of
a crosswalk necessarily would amount to "jaywalking" or otherwise
violate state or municipal law. [Fn. 13] 
          Moreover, Schumacher is inapposite.  The misuse of
streets addressed in Schumacher was the general activity of
sledding on city streets; because there is no permissible way to
sled on city streets, the activity itself was improper. [Fn. 14] 
Thus, in referring to sledding as a misuse of the street, we did
not suggest that the question of duty turned on the particular
manner in which the sledding occurred.   We later made this point
clear in Kooly v. State, where we extended Schumacher by holding
that the state had no general duty to protect sledders who use
state rights-of-way. [Fn. 15]  Taking guidance from Schumacher, we
emphasized that our duty analysis centered not on the particular
facts at issue, but on the general activity of sledding on public
          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.[ [Fn. 16]]

          Applying the same generalized approach to our duty
analysis here, we must focus not on the particular facts of this
case, but on the general activity of pedestrians using roadways. 
In contrast to sledding on streets, walking across intersections
and public roadways is a common, generally permissible and, indeed,
often necessary activity.  The state does not deny that it
generally owes a duty of due care to pedestrians who lawfully cross
its roadways; it maintains only that this duty somehow vanished
under the particular facts of this case because the crossing
alleged in the complaint was unlawful.  Yet just as the state's
general duty of due care toward motorists does not hinge on a
particular driver's misuse of the highways, [Fn. 17] neither can
its general duty toward pedestrians who cross public roadways turn
on the particularized facts of each case.
          "[F]act-intensive inquiries pertain to the issues of
breach, causation, and damages, not to the threshold legal question
of whether a duty exists." [Fn. 18]  Thus, even if the amended
complaint established beyond doubt that Alexander Guerrero "darted"
onto the street, or "jaywalked," or otherwise violated city or
state regulations by attempting to cross C Street, his conduct
could not absolve the department of the duty it owed him; rather,
his conduct would bear on the jury's determination of negligence,
breach, causation, and damages.  
          2.   The complaint does not rule out the existence of an
actionable duty by the corporation.  

          The superior court concluded that the corporation had no
duty to protect the Guerreros against obvious dangers existing off
the Loussac Complex premises.  On appeal, the Guerreros challenge
this ruling, arguing that the corporation's duty of due care
required it to take reasonable measures to protect tenants against
hazardous conditions on the adjacent roadway. [Fn. 19]  In response
to the Guerreros' argument, the corporation acknowledges that it
owed its tenants a duty of due care, but it insists that this duty
applied only within the boundaries of the Loussac Complex and did
not extend to the roadway, which it neither owned nor controlled.
          Alaska cases recognize that "[a]s a general rule,
landowners have a duty to use due care to guard against
unreasonable risks created by dangerous conditions existing on
their property." [Fn. 20]  Many other jurisdictions apply the same
general rule limiting liability to risks on a landowner's property,
some more rigorously than others. [Fn. 21]  For example, courts
traditionally have held that a landlord never had a duty to erect
a fence protecting tenants from off-site conditions. [Fn. 22]  But
some courts now find a duty to repair and maintain an existing
fence, holding the landlord liable if a negligent breach of this
duty injures a tenant off the premises. [Fn. 23]  And some courts
now hold that the lack of a fence or warning about off-site hazards
can amount to "a dangerous condition on [the] property." [Fn. 24] 
This is so even if the tenant is ultimately injured by a condition
on property that the landlord neither owns nor directly controls.
[Fn. 25]  
           The corporation cites many cases involving circumstances
comparable to those of the present case -- a child leaves the
landlord's property and is injured or killed by a force encountered
off the property -- in which courts have found no duty on the part
of the landlord. [Fn. 26]  But there are other cases on point in
which courts have held that the scope of the landlord's duty cannot
be resolved as a matter of law simply because the landlord does not
directly own or control the place where the injury occurred: 
          A landowner's duty of care to avoid exposing
others to a risk of injury is not limited to injuries that occur on
premises owned or controlled by the landowner.  Rather, the duty of
care encompasses a duty to avoid exposing persons to risks of
injury that occur offsite if the landowner's property is maintained
in such a manner as to expose persons to an unreasonable risk of
injury offsite.[ [Fn. 27]]
          Thus, cases in other states are divided: the traditional
view -- still the decided majority -- weighs against imposing a
duty to warn or otherwise protect tenants from dangers of traffic
on adjacent streets over which the landlord has no right of
possession, management, or control.  But an emerging minority would
impose a duty to protect or warn in some situations; these cases
apply a standard of reasonable care under the totality of the
circumstances that considers possession, management, and control
over conditions at the accident site to be relevant factors but
does not make their absence dispositive as a matter of law.  
          This court has never categorically ruled that a
landlord's duty cannot extend off-premises under certain
circumstances.  And we have not squarely addressed the issues of
whether or when a landlord might have a duty to protect or warn
tenants about dangers occurring on land adjacent to the landlord's
premises.  Nor do we find it necessary to resolve these issues
here.  Given that the Guerreros' case involves a summary dismissal
under Rule 12(b)(6), we find that two procedural points determine
the duty issue.  
          First, the corporation acknowledges that it owes a
general duty to protect its tenants from danger and "is in no
different position than any other landlord on this issue."  What
the corporation disputes is only the scope of this duty -- whether
and when the duty extends to protecting against hazards occurring
on an adjacent street.  Second, our cases and case law in other
jurisdictions do not clearly establish the scope of a landlord's
duty in comparable settings.  
          In these circumstances, we take guidance from our recent
decision in Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell,
where we made clear that our law usually regards questions
concerning precisely how far a duty extends as distinct from
questions concerning the duty's existence:
               Our precedents concern two sorts of
questions of tort duty.  In cases where no one disputes the
existence of a duty running from one party to another, we have
disfavored summary adjudication of the precise scope of that duty,
or of whether particular conduct did or did not breach it (i.e.,
constitute negligence).  This is particularly so when the scope of
the duty poses a fact-specific question, involving policy and
"circumstantial judgments" that our legal system reserves for the

               On the other hand, summary judgment is
proper where the only reasonable inference from the undisputed
facts is that one party owed another no duty whatsoever -- or owed
a duty clearly and vastly narrower in scope than the one that the
other party asserts in opposing summary judgment.[ [Fn. 28]]

          In the present case, the allegations of the amended
complaint, when taken as true and leniently construed (as they must
be for purposes of reviewing a dismissal under Rule 12(b)(6)), [Fn.
29] do not establish that the corporation's duty toward the
Guerreros is "vastly narrower in scope" [Fn. 30] than the one that
the Guerreros assert.  The Guerreros allege, among other things:
that the corporation failed to provide safe access to or from the
premises and no safe pedestrian access to either the bus stop at
22nd Avenue or the school located nearby on the west side of C
Street; that it failed to post warning signs or provide any other
warning of danger; that it built fencing obstructing access to a
safe pedestrian underpass at 19th Avenue and C Street; and that it
cut trees and built partial fencing around the perimeters of the
Loussac Complex in a manner that funneled pedestrians in the
opposite direction -- toward the intersection at 22nd Avenue and
C Street -- an intersection that the corporation knew to be
particularly dangerous.
          The amended complaint also indicates that the Loussac
Complex already existed when the department designed and built the
A/C Couplet and that the complex is located within the core of the
couplet.  Given the corporation's status as a public corporation,
its statutory mandate, and its authority to become involved in
matters of tenant safety that potentially reach beyond the confines
of its property, [Fn. 31] the amended complaint fails to rule out
the possibility that the corporation might have chosen to undertake
off-site responsibilities: that it might have participated to some
appreciable extent in the A/C Couplet planning process; that it
might have influenced the project's design or plans; that it might
have undertaken duties or retained a measure of influence or
control over the adjoining roadway; or that it might have made
commitments to modify the Loussac Complex, either to accommodate
the A/C Couplet or to protect its tenants from the couplet's
traffic hazards.
          We imply no specific reason to believe that the
corporation actually undertook any of these activities.  But the
allegations of the amended complaint do not rule them out.  In
other words, it does not "appear beyond doubt" that they did not
occur. [Fn. 32]  It is therefore conceivable that the corporation
extended its duty of care by affirmatively undertaking to protect
Loussac Complex tenants from the A/C Couplet's hazards -- an
undertaking that might render it liable even under traditional
views concerning the scope of a landlord's duties.  
          In sum, at this early procedural stage, we cannot exclude
these possibilities.  The corporation admittedly owes a duty of
care to its tenants; it is not clear from the complaint that this
duty is vastly narrower than the duty alleged by the Guerreros. 
Because the complaint does not rule out the existence of an
actionable duty, dismissing against the corporation under
Rule 12(b)(6) amounted to error. [Fn. 33] 
     C.   It Does Not Appear Beyond Doubt that All of the Amended
Complaint's Claims Against the Department and the Corporation Are
Barred by Discretionary Function Immunity.
          In dismissing the Guerreros' amended complaint, the
superior court determined as a matter of law that all its claims
were necessarily barred by discretionary function immunity.  On
appeal, the Guerreros dispute this decision.  Before reaching the
merits of this dispute we must consider the threshold question of
whether the corporation is a state agency capable of claiming
          In one of this court's earliest cases, Bridges v. Alaska
Housing Authority, we recognized the corporation's predecessor to
be a corporate entity distinct from the State of Alaska. [Fn. 34] 
In later decisions we confirmed the separate financial status of
public corporate authorities, holding that the state generally is
not responsible for their corporate liability. [Fn. 35] 
          But whether the corporation remains a state agency for 
purposes of invoking immunity presents a separate question.  As the
corporation correctly argues, it is well settled that neither
corporate status nor the power to sue and be sued as an independent
entity wholly precludes an entity from being considered an arm of
the state. [Fn. 36]  In University of Alaska v. National Aircraft
Leasing, Ltd., rejecting the traditional distinction between
proprietary and government functions, we held that "the guideposts
for . . . an inquiry [into a public entity's ability to claim
immunity] are to be found more in political and functional
realities than in organizational formalities." [Fn. 37]  Because we
found that the university "acts for the benefit of the state and of
the public generally in the process of government," we declared it
to be an arm of the state for purposes of claiming immunity. [Fn.
          In this regard, the corporation stands on the same
footing as the university.  As we indicated at the outset of this
opinion, the Alaska Housing Finance Corporation is a public
corporation organized within the Alaska Department of Revenue. [Fn.
39]  In creating the corporation, the legislature found that
"[t]here . . . exist within the state remote, underdeveloped, or
blighted areas where the development of decent, safe, and sanitary
housing is necessary to economic growth." [Fn. 40]  Finding these
conditions "inimical to the safety, health, welfare, and prosperity
of the residents of the state and to the sound growth of urban and
rural communities," [Fn. 41] the legislature empowered the
corporation "to act on behalf of the state and its people in
serving [these] public purpose[s] for the benefit of the general
public." [Fn. 42]  Moreover, though it functions as an independent
corporate entity, the corporation is represented by the state
attorney general in legal matters, [Fn. 43] and several state
officials serve on its board, including the commissioners of
revenue, community and regional affairs, and health and social
services. [Fn. 44]  Finally, the legislature has provided that,
upon termination, the corporation's rights and property pass to the
state. [Fn. 45]  
          These provisions convince us that the corporation "acts
for the benefit of the state and of the public generally in the
process of government" [Fn. 46] and is therefore an instrumentality
of the state for purposes of claiming sovereign immunity. [Fn. 47] 
We thus proceed to the core immunity issue: whether the amended
complaint potentially advances any claim against the corporation or
the department not barred by discretionary function immunity.
          A complaint can be dismissed under Rule 12(b)(6) if an
affirmative defense of statutory immunity clearly appears on its
face. [Fn. 48]  The question here is whether the Guerreros' claims
necessarily fall within AS 09.50.250(1)'s grant of discretionary
function immunity.  This form of immunity arises under AS 09.50.250
as an exception to the state's general waiver of sovereign immunity
from liability for tort damages:
               A person or corporation having a . . .
tort claim against the state may bring an action against the state
. . . .  However, an action may not be brought under this section
if the claim

               (1) is an action for tort . . . based
upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a state
agency or an employee of the state, whether or not the discretion
involved is abused[.]

          In State v. Abbott, we adopted the "planning/operational"
approach for identifying governmental acts that fall within this
statutory exception. [Fn. 49]  More recently, in State, Department
of Transportation and Public Facilities v. Sanders, we described
this approach as follows:
          [W]e identify "discretionary" acts or
functions by examining whether the act or function can be described
as "planning" or "operational."  A planning decision is one that
involves policy formulation.  In contrast, an operational decision
involves policy execution or implementation.  Only acts or
functions occurring at the planning level are entitled to immunity
as discretionary functions under AS 09.50.250.

               Under the planning/operational test,
"liability is the rule, immunity the exception."  The test focuses
on the policy behind the discretionary immunity doctrine for
guidance in determining whether a given act should receive
immunity.  "The policy underlying immunity is the necessity for
'judicial abstention in certain policy-making areas that have been
committed to other branches of government.'"  "This policy in turn
is based upon notions of separation of powers, and limitations on
this court's ability to reexamine the questioned decision and the
considerations that entered into it."[ [Fn. 50]]  
          We also have held that when a plaintiff bases a
negligence claim on conduct that typically involves planning and
policy, the plaintiff bears the burden of proving operational
          [O]nce it is determined that the decision at
issue is of the type entrusted to the planning level of government,
a claimant must show that an affirmative assumption of duty has
been made by the state in order to have a claim for relief for
alleged operational negligence in performing that duty.[ [Fn. 51]]

          In the present case, the superior court based its
immunity ruling on Jennings v. State. [Fn. 52]  In urging us to
affirm, the corporation and the department argue that the facts of
Jennings are "remarkably similar" and "nearly identical" to the
facts of this case and that Jennings therefore "compels . . .
dismissal." But the defendants fail to recognize that the Guerreros
have had no opportunity to present evidence establishing the
specific facts of their case; at present, they have merely filed a
complaint advancing their basic allegations.  By contrast, in
Jennings we upheld an order of dismissal issued on summary
judgment, and we based our ruling on an extensive factual record.
          Jennings involved a seven-year-old girl, Janet Lewis, 
who was killed on her way home from school while attempting to
cross College Road, [Fn. 53] a four-lane highway in a suburban
section of Fairbanks. [Fn. 54]  A driver had stopped and motioned
for her to cross, but another driver failed to stop. [Fn. 55]  The
fatal accident occurred at a point almost three blocks away from
the College Road intersection closest to Lewis's school -- the
intersection of Joy Street and College Road.  There, the state had
placed a cross-walk and traffic light. [Fn. 56]  The complaint in
Jennings alleged that the state had negligently failed to build an
overpass at Joy Street and College Road, to designate the
intersection a school zone, and to provide additional controlled
crossings on College Road. [Fn. 57]  
          We concluded that all these allegations fell within the
ambit of discretionary function immunity. [Fn. 58]  But we
unequivocally stated that our resolution turned on the specific
facts in the record: "In order to understand the allegations of
negligence asserted against the State of Alaska, it is necessary
that the location of the scene of the accident in relation to the
situs of Joy School be delineated." [Fn. 59]  We expressly found
"controlling significance" in the distance between the accident
scene and the school crossing at College Road and Joy Street. [Fn.
60]  We further noted that state regulations made designation of
school zones mandatory only in areas immediately adjacent to
schools, specifically leaving government officials discretion in
non-adjacent areas like the intersection of Joy Street and College
Road. [Fn. 61]  Similarly, we pointed out that all posted speed
limits on College Road complied with applicable regulations. [Fn.
          Jennings further underscored the significance of the
factual record by finding that the trial court had committed error
in basing its order of dismissal solely on the pleadings:
          Even though the parties did little to call the
superior court's attention to other items, including the three
depositions on file, the superior court should have gone outside
the pleadings to consider the entire setting of the case to the
extent that the material was brought to the court's attention by
the parties . . . .[ [Fn. 63]] 
          Thus, our decision in Jennings neither commands nor
warrants the outright dismissal of all facially similar complaints. 
Instead, Jennings stands for the more modest proposition that
summary judgment will be appropriate when a plaintiff who has been
given an opportunity to develop and present evidence fails to
produce any facts indicating operational negligence. [Fn. 64] 
          Jennings's reliance on case-specific evidence typifies
our case law dealing with the discretionary function exception.  We
have placed certain kinds of government actions on the operational
side of the operational/planning balance: highway maintenance, [Fn.
65] painting lane markings on highways, [Fn. 66] posting highway
signage, [Fn. 67] operating a seaplane dock, [Fn. 68] and designing
an airport runway for oversized aircraft. [Fn. 69]  We have
characterized other actions as involving immune planning decisions:
designating school zones, [Fn. 70] installing traffic control
signals, [Fn. 71] installing highway guardrails, [Fn. 72] reducing
the speed limit during a period of highway construction, [Fn. 73]
failing to implement highway dust control measures, [Fn. 74]
failing to close an icy stretch of highway, [Fn. 75] and failing to
adequately staff a fire department. [Fn. 76]  Yet our decisions
identifying discretionary functions have invariably involved cases
decided on summary judgment; we have never affirmed a dismissal
based on the pleadings alone. [Fn. 77]  
          Furthermore, we have consistently indicated that what
qualifies as a matter of basic planning or policy often depends
more on the factual circumstances surrounding an agency's actions
than it does on the actions' inherent nature.  Thus, in our
earliest discretionary function decision, Abbott, we pointed out
that by deciding to act on a policy matter, an agency can transform
it into a straightforward act of implementation: "Once the initial
policy determination is made . . . decisions as to how that
decision should be carried out . . . [are] made at the operational
level[.]" [Fn. 78]  
          We recently echoed this point in Sanders, holding that,
although airport officials were immune from liability for a
discretionary decision to allow certain vehicles to use a public
airport road, they owed the plaintiff an actionable duty once the
decision was made: "[I]f those officials did not take reasonable
steps to implement the planning decision in a non-negligent manner,
the State may be liable." [Fn. 79]  We further emphasized that a
matter of planning and policy can turn into an operational matter
not only through agency action, but also through agency policies,
regulations mandating agency action, or legal requirements limiting
agency discretion. [Fn. 80] 
          The department nevertheless insists that "a Rule 12(b)(6)
motion is a procedural vehicle with characteristics which dovetail
perfectly with the substantive law and policies of immunity." 
Asserting that the fundamental purpose of immunity is not merely to
provide a defense to liability but to protect the state from being
sued, the department contends that policy strongly favors summary
dismissal when a plaintiff fails to meet the burden of clearly
alleging operational negligence on the face of the complaint. 
          But the department mistakenly bases its policy argument
on cases applying qualified official immunity -- a distinct form of
protection designed to shield public officials from being
personally sued for good-faith official actions. [Fn. 81]  In
contrast, discretionary function immunity operates as a limited
exception to the state's broad waiver of sovereign immunity from
tort liability [Fn. 82] -- a waiver that evinces the state's
general willingness to face suit.  The law in this area
correspondingly recognizes that "liability is the rule, immunity
the exception." [Fn. 83]  And the underlying policies of the
discretionary function exception -- judicial abstention from
policy-making, separation of powers, and limitations on judicial
competence in reviewing executive-branch policy decisions [Fn. 84]
-- have little to do with sparing the state from being distracted
by litigation. 
          Moreover, the department's argument favoring summary
dismissal raises serious practical concerns.  Because the duty to
take operational actions in matters that ordinarily involve
planning or policy may depend on an agency's affirmative choices,
its internal policies, or legal requirements that may not be
commonly known, a plaintiff filing suit may lack sufficient
information to plead specific facts showing that the agency has
affirmatively undertaken an operational duty or that the duty is
imposed by policy or regulation.  Because our cases require the
plaintiff to bear the burden of negligence based on operational
acts, [Fn. 85] the prospect of summary dismissal confronts the
plaintiff with a dilemma: if the complaint is subject to summary
dismissal for failure to clearly show operational negligence, there
will never be an opportunity to meet the burden.
          A comparable dilemma confronts the court when it
considers a Rule 12(b)(6) motion to dismiss on the ground of
immunity.  The rule allows dismissal only if it "appears beyond
doubt" from the complaint that the state has a valid immunity
defense. [Fn. 86]  But when a complaint may reflect unavoidable
ignorance of agency actions and policies, the court can never know
beyond doubt whether allegations that appear to implicate planning
and policy mask agency actions that actually took place at the
operational level.  When a court faces this kind of uncertainty,
dismissal would be improper until the summary judgment stage, after
the plaintiff receives access to discovery of relevant agency
          Judged by these standards, the Guerreros' amended
complaint is legally sufficient.  In summary, the amended complaint
alleges, among other things: 
          that the department failed to provide any safe way of
crossing between the Loussac Complex and a nearby school on the
west side of C Street; 
          that the department failed to post adequate signage,
including the lack of signs warning pedestrians of the hazards of
crossing C Street in the vicinity of 22nd and the lack of signs
warning motorists of the potential presence of children;
          that the department unsafely designed and constructed the
A/C Couplet project, in violation of its own design regulations,
recommendations, and requirements; and that it took actions to
change C Street and related rights-of-way in violation of design
recommendations, regulations, and other applicable criteria;
          that the corporation was aware of these problems and
failed to warn tenants or take curative action; 
          that the department negligently placed, signed,
maintained, and constructed a bus stop on the west side of C Street
at 22nd Avenue and that it failed to provide a crosswalk;
          that both defendants created hazardous conditions by
taking actions -- including cutting down trees and building fencing
-- that funneled Loussac Complex residents away from the 19th
Avenue underpass and into two unsafe C Street crossings, and that
they failed to warn motorists of the pedestrian crossings, to
provide crosswalks, or to otherwise remedy the dangerous
          that the corporation failed to sign or otherwise warn
tenants of the danger on C Street;
          that the corporation defectively fenced the Loussac
Complex playground and placed fences that impeded access from the
complex to the 19th Avenue underpass and that funneled tenants
toward the unsafe 22nd Avenue crossing; and
          that the corporation failed to provide tenants safe
egress from and access to the Loussac Complex.
          Many of these allegations describe apparent planning
decisions.  But the absence of an evidentiary record precludes us
from eliminating all reasonable possibility that the Guerreros, if
given the opportunity, might be able to discover and produce
evidence of regulations, policies, or decisions by which the
defendants became bound to take specific, operational actions to
ensure public safety in connection with the design, construction,
and maintenance of the A/C Couplet and the Loussac Complex. [Fn.
          To a limited extent the amended complaint already alleges
an affirmative undertaking of duties.  For instance, it alleges
that the department committed itself to take operational actions by
affirmatively undertaking to design, build, and maintain the A/C
traffic couplet.  If these allegations are true, the department was
required to implement its policy decisions in a non-negligent
manner. [Fn. 88]  Thus, the pleadings alone do not "appear beyond
doubt" to eliminate the possibility of operational negligence.
          Finally, we note that the amended complaint includes at
least one allegation against each defendant that appears to involve
a non-exempt, operational act -- for example, the corporation's
alleged construction of a fence blocking access to the 19th Avenue
underpass and the department's alleged failure to post adequate
signage.  Because Rule 12(b)(6) allows a complaint to survive if it
alleges even a single "set of facts 'consistent with and
appropriate to some enforceable cause of action,'" [Fn. 89] these
allegations alone would preclude dismissal.
          For the foregoing reasons, we conclude that dismissal
under Rule 12(b)(6) was error.  We therefore REVERSE the judgment
of dismissal and REMAND for further proceedings.


Footnote 1:

     The A/C traffic couplet consists of two multi-lane, one-way
streets -- A Street and C Street -- that run in opposite directions
and are designed to channel rush-hour traffic smoothly into and out
of the downtown Anchorage area. 

Footnote 2:

     See AS 18.56.020.

Footnote 3:

     See Adkins v. Nabors Alaska Drilling, Inc., 609 P.2d 15, 21 &
n.11 (Alaska 1980).

Footnote 4:

     See Kollodge v. State, 757 P.2d 1024, 1026 n.4 (Alaska 1988). 

Footnote 5:

     See id.

Footnote 6:

     See id. at 1026; see also Odom v. Fairbanks Mem'l Hosp., 999
P.2d 123, 128 (Alaska 2000).

Footnote 7:

     Odom, 999 P.2d at 128 (quoting Linck v. Barokas & Martin, 667
P.2d 171, 173 (Alaska 1983)).

Footnote 8:

     Martin v. Mears, 602 P.2d 421, 429 (Alaska 1979) (emphasis
added) (quoting Schaible v. Fairbanks Med. & Surgical Clinic, Inc.,
531 P.2d 1252, 1257 (Alaska 1975)).  

Footnote 9:

     See Kooly v. State, 958 P.2d 1106, 1108-09 & n.8 (Alaska

Footnote 10:

     Schumacher v. City & Borough of Yakutat, 946 P.2d 1255, 1257
(Alaska 1997) (quoting D.S.W. v. Fairbanks N. Star Borough Sch.
Dist., 628 P.2d 554, 555 (Alaska 1981)). 

Footnote 11:

     946 P.2d at 1257.

Footnote 12:

     See id. at 1258 (noting that the road only became a danger to
the plaintiff as a result of his misuse of it and stating:
"Whatever duty the City might have owed to [the plaintiff]
regarding dangerous road conditions did not extend to dangers
created by [the plaintiff's] own conduct.").

Footnote 13:

     In fact, the department cited no state or municipal law at all
on this point in its brief.  Following oral argument, the
department submitted a statement of supplemental authority citing
several state and municipal traffic regulations that govern a
pedestrian's right to cross public roadways.  See 13 Alaska
Administrative Code (AAC) 02.155(b)-13 AAC 02.160; 13 AAC
02.175(d); Anchorage Municipal Code (AMC) 09.20.020(B)-AMC
09.20.040.  But none of these provisions definitively establishes
that an illegal attempt to cross C Street occurred in the present

Footnote 14:

     See 946 P.2d at 1258.

Footnote 15:

     See 958 P.2d 1106, 1108 (Alaska 1998).

Footnote 16:

     Id. at 1108-09.

Footnote 17:

     See State v. Kaatz, 572 P.2d 775, 779-80 (Alaska 1977).

Footnote 18:

     Bolieu v. Sisters of Providence in Wash., 953 P.2d 1233, 1241
(Alaska 1998).  

Footnote 19:

     The Guerreros also argue that, apart from its duty as a
landlord, the corporation owes independent duties to its tenants
under its statutory mandate as a public corporation.  But the
statutes that the Guerreros rely on -- including AS 18.55.680,
AS 18.55.690, AS 18.55.720, and AS 18.56.010 -- create no
independent duties; at most, they give the corporation limited
discretion to undertake responsibility for enhancing safety in
areas surrounding its housing projects.  If the corporation
actually did undertake any enhanced responsibility in connection
with the Loussac Complex or the A/C Couplet, its undertaking
certainly might affect the scope of the corporation's duty to the
Guerreros, and this, in turn, would be a relevant consideration in
determining whether the Guerreros' complaint states a potentially
viable cause of action.  But the statutes themselves are not the
source of any independent mandatory duty.  

Footnote 20:

     Schumacher v. City & Borough of Yakutat, 946 P.2d 1255, 1258
(Alaska 1997) (footnote omitted); see also Webb v. City & Borough
of Sitka, 561 P.2d 731, 733 (Alaska 1977), superseded by statute on
other grounds as stated in University of Alaska v. Shanti, 835 P.2d
1225, 1228 (Alaska 1992).

Footnote 21:

     See, e.g., Roth v. Wu, 405 S.E.2d 741, 742 (Ga. App. 1991);
Rand v. Knapp Shoe Stores, 444 N.W.2d 156, 157-58 (Mich. App.
1989); Kuzmicz v. Ivy Hill Park Apartments, Inc., 688 A.2d 1018,
1024 (N.J. 1997); Lauman v. Plakakis, 351 S.E.2d 765, 766-68 (N.C.
App. 1987); Scarborough v. Lewis, 565 A.2d 122, 125-26 (Pa. 1989);
Portillo v. Housing Auth. of the City of El Paso, 652 S.W.2d 568,
569 (Tex. App. 1983). 

Footnote 22:

     See, e.g., McCarthy v. New York, New Haven & Hartford R.R.
Co., 240 F. 602, 605 (2d Cir. 1917).  

Footnote 23:

     See Calkins v. Cox Estates, 792 P.2d 36, 40-41 (N.M. 1990);
Nelson ex rel. Stuckman v. Salt Lake City, 919 P.2d 568, 573-74
(Utah 1996). 

Footnote 24:

     Alcaraz v. Vece, 929 P.2d 1239, 1244 (Cal. 1997).

Footnote 25:

     See Barnes v. Black, 71 Cal. App. 4th 1473, 1478 (Cal. App.
1999); McDaniel v. Sunset Manor Co., 220 Cal. App. 3d 1, 7-8 (Cal.
App. 1990) (applying factors identical to those in D.S.W. v.
Fairbanks N. Star Borough Sch. Dist., 628 P.2d 554, 555 (Alaska
1981), to determine the scope of the duty of care whether the harm
is situated onsite or offsite). 

Footnote 26:

     See cases cited supra note 21.

Footnote 27:

     Barnes, 71 Cal. App. 4th at 1478; see also Udy v. Calvary
Corp., 780 P.2d 1055, 1059 (Ariz. App. 1989); Limberhand v. Big
Ditch Co., 706 P.2d 491, 499-500 (Mont. 1985).

Footnote 28:

     956 P.2d 1199, 1203 (Alaska 1998) (footnote and internal
citations omitted); see also Dinsmore-Poff v. Alvord, 972 P.2d 978,
987 (Alaska 1999) (summary judgment often improper when the
question is whether the duty's precise scope encompassed a given

Footnote 29:

     See Kollodge v. State, 757 P.2d 1024, 1025-26 (Alaska 1988).

Footnote 30:

     Arctic Tug, 956 P.2d at 1203.

Footnote 31:

     See supra note 19.

Footnote 32:

     Martin v. Mears, 602 P.2d 421, 429 (Alaska 1979).

Footnote 33:

     We emphasize that our ruling on the impropriety of a dismissal
under Rule 12(b)(6) does not necessarily preclude the superior
court from deciding disputed issues of duty on summary judgment. 
Under Arctic Tug, a dismissal on summary judgment will be
permissible if the record at that stage presents undisputed facts
enabling the court to conclude as a matter of law that no
reasonable juror could find that any duty toward the Loussac
Complex tenants encompassed the duty alleged.  See 956 P.2d at
1203.  Our ruling on duty today holds only that the complaint, on
its face, does not allow this conclusion.

Footnote 34:

     See 349 P.2d 149, 152 (Alaska 1959) (holding that Alaska
Housing Authority is not the state for purposes of eminent domain

Footnote 35:

     See, e.g., Walker v. Alaska State Mortgage Ass'n, 416 P.2d
245, 253 (Alaska 1966); DeArmond v. Alaska State Dev. Corp., 376
P.2d 717, 722 (Alaska 1962).

Footnote 36:

     See University of Alaska v. National Aircraft Leasing, Ltd.,
536 P.2d 121, 125 (Alaska 1975); Alaska State Hous. Auth. v. Dixon,
496 P.2d 649, 650 (Alaska 1972). 

Footnote 37:

     536 P.2d at 125.

Footnote 38:

     Id. at 128. 

Footnote 39:

     See AS 18.56.020.

Footnote 40:

     AS 18.56.010(a).

Footnote 41:


Footnote 42:

     AS 18.56.010(c).

Footnote 43:

     See AS 18.56.055. 

Footnote 44:

     See AS 18.56.030.  The board must send a certified copy of the
minutes of each meeting to the governor and to the Legislative
Budget and Audit Committee.  See AS 18.56.045.

Footnote 45:

     See AS 18.56.020.

Footnote 46:

     University of Alaska v. National Aircraft Leasing, Ltd., 536
P.2d 121, 127 (Alaska 1975). 

Footnote 47:

     Cf. Alaska Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116, 1122-
26 (Alaska 1997) (treating the housing corporation as a state
entity against which punitive damages could not be awarded). 

Footnote 48:

     See J&L Diversified Enters., Inc. v. Municipality of
Anchorage, 736 P.2d 349, 351 (Alaska 1987).  

Footnote 49:

     498 P.2d 712, 721 (Alaska 1972).

Footnote 50:

     944 P.2d 453, 456-57 (Alaska 1997) (internal citations

Footnote 51:

     Industrial Indem. Co. v. State, 669 P.2d 561, 566 (Alaska
1983) (footnote omitted); see also Sanders, 944 P.2d at 458 n.5.

Footnote 52:

     566 P.2d 1304 (Alaska 1977). 

Footnote 53:

     See id. at 1307-08.

Footnote 54:

     See id. at 1305.

Footnote 55:

     See id.

Footnote 56:

     See id. at 1307, 1312.

Footnote 57:

     See id. at 1305, 1311.

Footnote 58:

     See id. at 1311-12.

Footnote 59:

     Id. at 1307.

Footnote 60:

     Id. at 1312.

Footnote 61:

     See id. at 1311 n.28.

Footnote 62:

     See id.

Footnote 63:

     See id. at 1310 (emphasis added).  Yet another indication of
Jennings's fact-specific focus can be seen in its treatment of a
separate claim of error: the plaintiff's claim that the trial court
abused its discretion in ruling on the state's motion for summary
judgment without first requiring the state to comply with an
outstanding request for discovery.  Although we upheld the trial
court's refusal to postpone ruling on the immunity issue pending
additional discovery, we specifically based our decision on the
plaintiff's failure to file a proper request for additional time,
as required by Alaska Civil Rule 56(f).  See id. at 1313-14.  In
affirming on this narrow ground, we tacitly recognized that the
plaintiff would have been entitled to additional discovery if she
had filed a proper request.  See id.

Footnote 64:

     We implicitly made this point in Jennings by distinguishing
prior immunity decisions on the ground that they involved
situations in which the evidence established that the state had
affirmatively undertaken a discretionary duty:

          Similarly, in the case at bar, had the
planning level decision been made to delineate this area a school
zone and then the state negligently signed the area or negligently
constructed a crosswalk, a cause of action might have arisen
against the state for these negligently performed operational level

Jennings, 566 P.2d at 1312 n.30.

Footnote 65:

     See State v. Abbott, 498 P.2d 712 (Alaska 1972).

Footnote 66:

     See State v. I'Anson, 529 P.2d 188 (Alaska 1974).

Footnote 67:

     See Jennings, 566 P.2d at 1313.

Footnote 68:

     See Plancich v. State, 693 P.2d 855 (Alaska 1985).

Footnote 69:

     See Japan Air Lines Co. v. State, 628 P.2d 934 (Alaska 1981).

Footnote 70:

     See Jennings, 566 P.2d at 1311.

Footnote 71:

     See Rapp v. State, 648 P.2d 110 (Alaska 1982); Wainscott v.
State, 642 P.2d 1355 (Alaska 1982).

Footnote 72:

     See Industrial Indem. Co. v. State, 669 P.2d 561 (Alaska

Footnote 73:

     See Earth Movers of Fairbanks, Inc. v. State, 691 P.2d 281
(Alaska 1984).

Footnote 74:

     See Freeman v. State, 705 P.2d 918 (Alaska 1985).

Footnote 75:

     See Estate of Arrowwood ex rel. Loeb v. State, 894 P.2d 642
(Alaska 1995).

Footnote 76:

     See Adams v. City of Tenakee Springs, 963 P.2d 1047 (Alaska

Footnote 77:

     The state cites Aspen Exploration Corp. v. Sheffield, 739 P.2d
150, 152 (Alaska 1987), and J & L Diversified Enters., Inc. v.
Municipality of Anchorage, 736 P.2d 349 (Alaska 1987), as immunity
cases decided by Rule 12(b)(6) dismissals. Neither case is
apposite: Aspen deals with qualified immunity and J & L Diversified
involves municipal immunity under AS 09.65.070 from suits arising
out of the permitting process. 

Footnote 78:

     498 P.2d 712, 722 (Alaska 1972).

Footnote 79:

     944 P.2d 453, 459 (Alaska 1997) (footnote omitted).

Footnote 80:

     See id. at 457 (quoting and citing Berkovitz ex rel. Berkovitz
v. United States, 486 U.S. 531, 536 (1988)).

Footnote 81:

     Thus, in support of its argument, the department relies
primarily on Harlow v. Fitzgerald, 457 U.S. 800, 816-17 (1982), and
Karen L. v. State, Dep't of Health & Human Servs., Div. of Family
& Youth Servs., 953 P.2d 871, 879 (Alaska 1998) -- both of which
involve qualified official immunity. 

Footnote 82:

     See AS 09.50.250.

Footnote 83:

     Johnson v. State, 636 P.2d 47, 64 (Alaska 1981).

Footnote 84:

     See Sanders, 944 P.2d at 456-57.

Footnote 85:

     See Industrial Indem. Co. v. State, 669 P.2d 561, 566 & n.11
(Alaska 1983); see also Sanders, 944 P.2d at 458 n.5.

Footnote 86:

     Martin v. Mears, 602 P.2d 421, 429 (Alaska 1979) (quoting
Schaible v. Fairbanks Med. & Surgical Clinic, Inc., 531 P.2d 1252,
1257 (Alaska 1975)).  

Footnote 87:

     We recognize that most of the amended complaint's claims
appear to describe exempt planning decisions and are not
insensitive to the defendants' understandable concern that allowing
this case to proceed will expose them to costly, time consuming,
and unnecessary discovery that might merely confirm what now seems
likely: that the defendants either owe no actionable duty to the
Guerreros or are immune from liability.  We emphasize that nothing
in this decision precludes the defendants from requesting, or the
superior court from imposing, reasonable restrictions on discovery
or a graduated discovery schedule aimed at initially developing a
record that might allow meaningful consideration of immunity and
duty on summary judgment.  

Footnote 88:

     See Sanders, 944 P.2d at 459.  We do not suggest that an
agency's affirmative decision to undertake a discretionary duty
necessarily renders all of its ensuing actions operational.  To the
contrary, when an agency makes a broad policy decision or
undertakes a basic discretionary duty, its decision may lead to a
broad and complex mix of secondary actions and choices, some purely
operational but others requiring further planning and the
formulation of new or additional policy.  We recognize that the
agency may then remain exempt from liability for secondary
decisions that truly involve basic planning and policy.  But here,
as in Sanders, we advance a narrower point: once an agency has
initially decided to undertake a discretionary duty, it can no
longer claim its original discretion not to undertake that duty as
the source of immunity for all of its downstream conduct.  

Footnote 89:

     Odom v. Fairbanks Memorial Hospital, 999 P.2d 123, 128 (Alaska
2000) (quoting Linck v. Barokas & Martin, 667 P.2d 171, 173 (Alaska