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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. City of Seward v Afognak Logging (09/28/2001) sp-5477

City of Seward v Afognak Logging (09/28/2001) sp-5477

     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.


CITY OF SEWARD,               )
                              )    Supreme Court No. S-9456
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3KN-97-00694 CI
AFOGNAK LOGGING, a division   )
               Appellee.      )    [No. 5477 - September 28, 2001]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
                     Harold M. Brown, Judge.

          Appearances: Richard A. Weinig, Pletcher,
          Weinig, Fisher & Dennis, Anchorage, for
Appellant.  Wevley William Shea, Anchorage, for Appellee.

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

          BRYNER, Justice.

          During a heavy rainfall, the City of Seward asked local
contractor Afognak Logging to dispatch two bulldozers with
operators to the Lowell Point bridge to help with flood control
efforts.  One of the bulldozers bogged down and suffered extensive
damage in flood water that covered the highway near the bridge. 
Afognak sued to recover its damages, claiming that the city
negligently failed to warn it that the flood had washed away the
roadbed.  A jury found the city liable, and the superior court
awarded Afognak $89,000 in damages.  We affirm, holding that the
city owed Afognak an actionable duty of reasonable care, that
neither discretionary function immunity nor emergency immunity
protected the city, and that substantial evidence supports the
damage award.
          The Lowell Point bridge stands between a waterfall and
the Resurrection Bay about 300 yards southwest of downtown Seward. 
During periods of heavy rain, water collects behind the bridge and
overflows the highway at both ends.  Heavy rains were falling in
Seward on the morning of September 20, 1995.  When Seward's
engineering and utilities manager, Dave Calvert, checked the
bridge, he found the waterfall spewing rock- and gravel-filled
water toward the bridge, like a giant hose.  Calvert radioed public
works superintendent Floyd Ainsworth to report the condition of the
waterfall.  As he spoke with Ainsworth, Calvert saw the floodwaters
chew away the roadbed south of the bridge, collapsing the highway's
pavement.  Ainsworth knew that the same kind of damage had occurred
during previous floods.
          Ainsworth came to the waterfall in response to Calvert's 
report of the washout and saw that the water collecting behind the
bridge was threatening to spill north toward a lift station and
south toward a cannery.  Ainsworth called Afognak Logging and asked
Afognak's manager, Steve Schafer, to dispatch a D-9 bulldozer and
an operator to control the flooding.  Because the city owned no
large bulldozers, it had a standing arrangement for Afognak to
provide equipment with operators; that day, the city orally agreed
to pay $145 per hour for D-9 bulldozers with operators.
          Schafer arrived at Lowell Point with a D-9 bulldozer and
spent the morning attempting to clear channels for floodwaters to
drain over the roadway at both ends of the bridge.  Later that
morning, at Ainsworth's request, someone from the city's emergency
management office called Afognak for an additional bulldozer and
operator.  Afognak sent Lyle Johnson with a second D-9 bulldozer.
While Johnson was working on the north side of the bridge,
Ainsworth asked him to pick up some people stranded on the south
side and ferry them across in his bulldozer to the north side. 
Ainsworth next instructed Johnson to cut a channel allowing flood
water to drain across the highway on the south side of the bridge.
Ainsworth failed to tell Johnson that the pavement on the south
side of the bridge had collapsed earlier in the morning.  The
bridge and adjoining highway on the south side was covered with
murky water and gravel, making the condition of the underlying
roadbed impossible to see.  After working some time without
progress, Johnson bogged down in loose gravel and was forced to
abandon his bulldozer.  The  bulldozer could not be retrieved from
the waterfall until five days later.  It was extensively damaged.
Afognak estimated that the reasonable cost of repairing the
bulldozer would be more than $100,000. 
          Afognak sued the city to recover its damages, alleging
breach of contract, bad faith, negligence, fraud, and strict
liability.  The superior court dismissed all but the negligence
claim, allowing that claim to survive because the court found
sufficient evidence to support a finding that the city negligently
failed to warn Afognak of the washed out pavement south of the
Lowell Point bridge.  Concerning this theory, the court instructed
the jury: 
               Now, in this case the plaintiff claims
that the defendant's negligence caused a loss of plaintiff's
bulldozer.  For the plaintiff to win on this claim, you must decide
that [it] is more likely true than not true (1) that the defendant
knew that there existed a hidden, unknown and extrahazardous danger
at the location where plaintiff was operating its bulldozer; (2)
that the existence of the hidden, unknown and extrahazardous danger
could not have been reasonably foreseen by plaintiff; and (3) the
defendant's failure to inform plaintiff of the hidden and
extrahazardous danger at the location where plaintiff was operating
the bulldozer was negligent and was a legal cause of the
plaintiff's loss.
          The jury found Seward negligent.  After a non-jury trial
on the issue of damages, the superior court awarded Afognak $89,700
plus prejudgment interest and attorney's fees.
          Seward appeals.
          On appeal, the city argues that the superior court should
have dismissed Afognak's negligence claim because the city owed no
duty to warn Afognak that the pavement had washed away and because
two forms of statutory immunity protected the city from liability
-- discretionary function immunity and emergency immunity.  The
city also challenges the award of damages and prejudgment interest. 
     A.   Standard of Review
          We review the denial of summary judgment de novo,
applying our independent judgment. [Fn. 1]  We also review de novo
whether the trial court correctly applied legal rules pertaining to
damages [Fn. 2] and prejudgment interest. [Fn. 3]  A trial court's
damage determination itself is a factual finding that we review for
clear error; an award is clearly erroneous if we are "left with the
definite and firm conviction on the entire record that a mistake
has been committed."[Fn. 4]
     B.   Legal Duty

          The city maintains that it was entitled to summary
judgment or a directed verdict on negligence because it owed only
contractual duties to Afognak.  Since Afognak was an independent
contractor, the city reasons that it had no legal duty to warn
Afognak of hazardous job-site conditions.
          The superior court accepted this reasoning to a limited
extent.  Relying on Restatement of Torts sec. 413 -- which requires
independent contractor's employer to protect against any "peculiar
and unreasonable risk of harm to others"arising from the
contractor's work [Fn. 5] -- the court concluded that the city only
had a duty to warn Afognak of "peculiar"dangers to its property. 
Based on this conclusion, the court instructed the jury that the
city would be liable if it negligently failed to warn Afognak of
"extrahazardous"conditions that Afognak could not reasonably have
foreseen.  Afognak alternatively argues that the city owed a duty
of due care to warn against danger under the general test adopted
in D.S.W. v. Fairbanks North Star Borough School District. [Fn. 6] 
The city disputes the court's reliance on sec. 413, insisting that
Afognak and its bulldozers were not "others"to whom a duty of
protection extended under this provision. 
          Whether the city had a legal duty to inform Afognak that
the pavement south of the Lowell Point bridge had previously washed
away is a legal question that we review de novo. [Fn. 7]  Although
we are inclined to agree with the city's assertion that sec. 413
not apply in this factual setting, [Fn. 8] the point is moot since
undisputed record evidence points to the existence of a duty under
Afognak's alternative theory that the D.S.W. test applies to this
situation.          In D.S.W. we described seven relevant factors
that courts consider in determining the existence of an actionable
duty in situations not governed by settled law:
          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. 9]]

Applied to the circumstances of the present case, virtually every
D.S.W. factor points to the conclusion that the city owed an
actionable duty to warn Afognak of foreseeable danger that the city
was aware of but that might not have been readily apparent to
Afognak. [Fn. 10]
          Accepted rules governing the existence of actionable
duties in analogous settings confirm this conclusion.  Here, the
city acknowledges that it controlled the land surrounding the
bridge and was attempting to abate flood conditions there at the
time of the damage to Afognak's bulldozer.  Moreover,
uncontroverted evidence establishes that a city employee,
Ainsworth, was at the scene of the flooding and specifically
requested Johnson to operate his bulldozer in the area south of the
bridge, where Ainsworth knew or should have known that the pavement
had been washed away.
          We have long recognized that a duty of reasonable care
generally arises when a person undertakes an action and that "one
who assumes to act, even though gratuitously, may thereby become
subject to the duty of acting carefully."[Fn. 11]  We have also
long recognized a landowner's duty "to use due care to guard
against unreasonable risks created by dangerous conditions."[Fn.
12]  Here, Ainsworth's active presence at the scene of the flooding
and the specific action that he undertook by directing Johnson's
flood control efforts point to the same conclusion as the D.S.W.
factors:  the city, as Ainsworth's employer, owed a reasonable duty
of care toward Johnson and his bulldozer; and this duty applied to
the city even though Johnson, as an "independent contractor,"might
not have been contractually bound to follow Ainsworth's directions.
[Fn. 13]   
          We find no merit, then, in the city's claim that it owed
Afognak no actionable duty of care.  We also find that the superior
court adequately instructed the jury on the city's duty to warn
Afognak of dangerous conditions, even though the court's
instructions were unduly favorable to the city insofar as they
required the jury to find that the conditions amounted to an
"extrahazardous"danger. [Fn. 14]  In response to the court's
instructions, the jury returned a special verdict finding: (1)
there was a hidden danger at the location where the city asked
Afognak's operator to work; (2) the city knew of the danger; (3)
Afognak could not reasonably have foreseen the danger; (4) the city
was negligent in failing to inform Afognak of the pavement failure
that Calvert had observed; (5) the city's negligence caused the
bulldozer to become stuck; and (6) Afognak was not itself
          Our review of the record convinces us that Afognak
presented sufficient evidence to support this verdict and that the
superior court did not err in denying the city summary judgment or
a directed verdict on the ground that it had no duty to warn
Afognak of dangerous conditions.
     C.   Immunity

          Alaska Statute 09.65.070 permits damage suits against
municipalities but creates limited immunity under certain
circumstances.  The city claims immunity under two of the statute's
          First, the city contends that it was immune under
AS 09.65.070(d)(5)'s emergency provision:
          (d)  An action for damages may not be
brought against a municipality or any of its agents, officers,
or employees if the claim

          . . . .

          (5)  is based upon the exercise or
performance of a duty or function upon the request of, or by
the terms of an agreement or contract with, the state to meet
emergency public safety requirements . . . . 

          It is undisputed that the city hired Afognak to assist it
in executing its East Zone Emergency Response Plan -- a plan
created by the city and the Kenai Peninsula Borough under the
Alaska Disaster Act.  The city contends that the state's
participation in preparing and finally approving this plan renders
the plan "an agreement . . . with the state to meet emergency
public safety requirements,"as contemplated by AS 09.65.070(d)(5). 
But the city's argument is unpersuasive. 
          The Alaska Disaster Act holds local governments primarily
responsible for responding to local disasters. [Fn. 15]  As the
Seward City Ordinances expressly acknowledge, "it is a primary
responsibility of all municipalities to plan and prepare for
response to potential disasters." The city fulfilled this
statutory obligation by entering into its response plan with the
Kenai Peninsula Borough.  That the state reviewed the city's plan
for compliance did not transform it from a statutory duty into "an
agreement or contract"to perform the state's duties. [Fn. 16]  We
hold, then, that AS 09.65.070(d)(5)'s grant of emergency immunity
does not insulate the city from liability for the damage to
Afognak's bulldozer. 
          The city also claims discretionary function immunity
under AS 09.65.070(d)(2), which holds municipalities immune from
liability "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, whether or not
the discretion involved is abused."
          This provision does not shield municipalities from
liability for the consequences of operational negligence.  In
applying discretionary function immunity, we have consistently
distinguished between planning and operational decisions. [Fn. 17] 
Discretionary function immunity precludes liability for harm caused
by the type of planning decisions that involve policy formulation.
[Fn. 18]  In contrast, operational decisions -- those made while
executing or implementing existing policies -- are not immune. [Fn.
19]  This dichotomy serves "to immunize policy-level (or
'discretionary') decisions about whether to undertake activities,"
while maintaining liability "for negligently performing particular
operations to implement the broad policy decision[s]."[Fn. 20]
          The city contends that the planning/operational dichotomy
does not apply to cases involving emergencies; it cites Earthmovers
of Fairbanks, Inc. v. State [Fn. 21] to support this contention. 
But in Earthmovers the plaintiff claimed that a trooper had
negligently misread a regulation authorizing him to take emergency
action; in rejecting this claim, we concluded that the trooper had
read the regulation correctly. [Fn. 22]  Given this conclusion, we
had no occasion to discuss the planning/operational dichotomy. [Fn.
23]  Earthmovers thus fails to support the city's immunity claim.
          The city has also attempted to characterize its
employees' actions as resource allocation measures, which we have
sometimes considered to be protected planning decisions. [Fn. 24] 
But the resource allocation decisions that we have deemed immune in
prior cases fundamentally differ from the decisions at issue here. 
In Adams v. City of Tenakee Springs, [Fn. 25] for example, we
applied immunity to a municipality's decisions concerning the size
of its fire department.  And in Estate of Arrowwood v. State, [Fn.
26] we excluded on grounds of immunity "evidence relating to the
effect of reductions in DOT's budget upon the level of road
maintenance in the Palmer-Wasilla region."[Fn. 27]  The resource
allocation decisions in those cases involved broad policy choices
about how to expend limited funding.  By contrast, in State v.
Abbott, [Fn. 28] we declined to characterize as immune an
engineer's decision to send staff and equipment to maintain a
specific stretch of highway; while acknowledging that this decision
involved a certain amount of planning and discretion, we held that
"it [was] not the kind of broad policy decision at which
[discretionary function immunity] is aimed."[Fn. 29]  
          Here, the disputed actions were not budgetary
allocations.  Like the engineer in Abbott, Ainsworth and Calvert
were performing operational functions.  Moreover, their alleged
acts of negligence had nothing to do with the manner in which they
allocated the city's emergency response resources:  Afognak did not
challenge Ainsworth's decision to direct Johnson's efforts toward
the south side of the bridge; rather, it simply claimed that
Ainsworth or Calvert should have warned Afognak that working there
would expose Johnson to a hidden danger. 
          In sum, we find no merit in the city's immunity claims.
     D.   Damages
          The superior court determined that Afognak was entitled
to $89,700 in costs-of-repair damages plus prejudgment interest and
attorney's fees.  The city argues that the court erred in awarding
damages for cost of repair without first determining whether those
costs were disproportionate to the loss in market value that
Afognak's bulldozer sustained as a result of the accident.  The
city further argues that the award improperly included costs that
Afognak would not actually incur, since it sent the bulldozer to
the Seward Skill Center, where it would be repaired free of charge.
          In Alaska, the owner of negligently damaged property may
ordinarily recover either its lost value or its reasonable cost of
repair and residual loss in value, whichever is less. [Fn. 30]  The
plaintiff bears the burden of proving damages, but once the
existence of damage has been established, the amount of loss need
not be proved with mathematical precision. [Fn. 31] 
          Here, Afognak's evidence indicated that its damaged
bulldozer was a particularly valuable model, that it had been
renovated shortly before the accident and was in excellent
condition, and that machines of similar quality could not be
readily found on the market.  Afognak's evidence also indicated
that a new D-9 bulldozer costs approximately $500,000 or more and
that its damaged D-9 was worth approximately $200,000 before the
accident.  The superior court accepted Afognak's evidence of the
bulldozer's pre-accident value.  Although it did not expressly
determine the bulldozer's post-accident value, the court
specifically pointed to evidence indicating that a "worn-out"D-9
had recently been advertised for $30,000.  In short, the trial
court made it abundantly clear that, in its view, the accident
resulted in a loss of value that vastly exceeded the bulldozer's
estimated cost of repair. 
          The court thus properly turned to reasonable cost of
repair as an alternative measure of damages.  After rejecting the
city's cost estimate as incomplete and Afognak's estimate as
including $13,500 in potentially unnecessary repairs, the court
fixed the reasonable cost of repair at $89,700.  The city complains
that this estimate did not accurately reflect what Afognak would
actually pay to repair its bulldozer.  But the superior court
recognized that its award might not correspond precisely with the
cash cost to Afognak, since the company had elected to have its D-9
repaired by students and to cannibalize another of its machines for
replacement parts.  The court nevertheless found its estimate of
Afognak's costs to be reasonable.  In our view, this finding is not
clearly erroneous; for when a court or jury determines cost-of-
repair damages, "[i]t is the value, not the cost of repairs that is
essential."[Fn. 32]  Here, the value fixed by the court is
reasonable in light of the totality of the evidence.  Accordingly,
we affirm its award of damages.
     E.   Prejudgment Interest
          The superior court awarded prejudgment interest on the
full $89,700 damage award.  The city cites Sebring v. Colver [Fn.
33] to argue that it should not be required to pay prejudgment
interest on the full amount.  In Sebring, we concluded that the
superior court erred by awarding prejudgment interest on a damage
award compensating a family for the cost of repairs that had not
yet been made. [Fn. 34]  But we based our conclusion on evidence
showing that, because "the financial impact of the passage of time
was thus incorporated into the jury's damage award, any award of
prejudgment interest on this amount would . . . constitute a double
recovery."[Fn. 35]  Unlike the evidence in Sebring, the record
here fails to establish that the superior court's award of damages
"already incorporated""the financial impact of the passage of
time."[Fn. 36]  The city bore the burden of proof on this issue;
[Fn. 37] and absent an affirmative showing of double recovery, we
will not reverse an award of prejudgment interest. [Fn. 38]
          For the foregoing reasons, we AFFIRM the superior court's


Footnote 1:

     See Fejes v. Alaska Ins. Co., 984 P.2d 519, 522 (Alaska 1999). 

Footnote 2:

     See Curt's Trucking Co. v. City of Anchorage, 578 P.2d 975,
977 (Alaska 1978).

Footnote 3:

     See Cole v. Bartels, 4 P.3d 956, 958 (Alaska 2000); Navistar
Int'l Transp. Corp. v. Pleasant, 887 P.2d 951, 958 n.10 (Alaska

Footnote 4:

     Curt's Trucking, 578 P.2d at 977 n.6.

Footnote 5:

     Restatement (Second) of Torts sec. 413 (1965) provides:

          One who employs an independent contractor to
do work which the employer should recognize as likely to create,
during its progress, a peculiar unreasonable risk of physical harm
to others unless special precautions are taken, is subject to
liability for physical harm caused to them by the absence of such
precautions if the employer

               (a)  fails to provide in the contract
that the contractor shall take such precautions, or

               (b)  fails to exercise reasonable care to
provide in some other manner for the taking of such precautions.

Cf. Moloso v. State, 644 P.2d 205, 214 (1982) (applying Restatement
sec. 413).

Footnote 6:

     628 P.2d 554, 555 (Alaska 1981).

Footnote 7:

     See Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 254
(Alaska 2000); Estate of Breintenfeld v. Air-Tek, Inc., 755 P.2d
1099, 1102 (Alaska 1988).  We determine whether a duty exists
before addressing immunity questions.  See Guerrero, 6 P.3d at 254.

Footnote 8:

     Cf. Torres v. Reardon, 5 Cal. Rptr. 2d 52, 56-57 (Cal. App.
1992); Conroy v. Sherwin-Williams Co., 522 N.E.2d 731, 734-35 (Ill.
App. 1988).

Footnote 9:

     D.S.W., 628 P.2d at 555 (quoting Peter W. v. San Francisco
Unified Sch. Dist., 131 Cal. Rptr. 854, 859-60 (Cal. App. 1976)).

Footnote 10:

     Indeed, to the extent that the D.S.W. factors establish that
the city owed a duty of due care to warn Afognak of any hidden but
reasonably foreseeable danger, Afognak's alternative theory of duty
would indicate that the instructions submitted to the jury were
unduly favorable to the city in permitting the jury to hold the
city liable only upon a finding that "the defendant knew that there
existed a hidden, unknown and extrahazardous danger at the
location."(Emphasis added.)

Footnote 11:

     Moloso, 644 P.2d at 212 (quoting Hammond v. Bechtel, Inc., 606
P.2d 1269, 1277 n.15 (Alaska 1980)).

Footnote 12:

     Guerrero, 6 P.3d at 255 (quoting Schumacher v. City & Borough
of Yakutat, 946 P.2d 1255, 1258 (Alaska 1997)); see also Webb v.
City of Sitka, 561 P.2d 731, 732-33 (Alaska 1977), superseded by
statute on other grounds, as stated in University of Alaska v.
Shanti, 835 P.2d 1225, 1228 (Alaska 1992) (adopting the unitary
test articulated in Smith v. Arbaugh's Restaurant, Inc., 469 F.2d
97, 100 (D.C. Cir. 1972), and requiring landowners to act
reasonably "in view of all the circumstances, including the
likelihood of injury to others, the seriousness of the injury, and
the burden on the respective parties of avoiding the risk").

Footnote 13:

     To the extent that our ruling conflicts with the superior
court's finding that the city retained no control over the
conditions of Afognak's work, we conclude that the superior court 
erred as a matter of law.  Cf. Moloso, 644 P.2d at 211-12; Hammond,
606 P.2d at 1274; Morris v. City of Soldotna, 553 P.2d 474, 478
(Alaska 1976); Hobbs v. Mobil Oil Corp., 445 P.2d 933, 934 (Alaska

Footnote 14:

     See note 10 above.  The city also complains that the superior
court erred in allowing the jury to determine as a matter of fact
whether the condition of the highway amounted to an "extrahazardous
danger." The city cites Matomco Oil Co. v. Arctic Mechanical,
Inc., 796 P.2d 1336, 1341-42 (Alaska 1990), for the proposition
that this issue is a question of law for the court, rather than a
question of fact for the jury.  But Matomco is inapposite, since we
dealt there with the particular meaning of "ultra-hazardous
activity"for purposes of imposing strict liability.  Id.  And in
any event, any error in submitting this disputed issue to the jury
was harmless in this case since the "extrahazardous danger"
requirement was superfluous.  As our opinion indicates, the city
owed a duty of due care to warn Afognak of unforeseen dangers, not
"extrahazardous"dangers.  Here, the added requirement of an
"extrahazardous"danger inured to the city's benefit.

Footnote 15:

     AS 26.23.060(b) states:

               Each political subdivision is responsible
for disaster preparedness and coordination of response

               (1) by itself;

               (2) in conjunction with other political
subdivisions by establishing an interjurisdictional planning and
service area under AS 26.23.070;  or

               (3) in conjunction with the Alaska
division of emergency services.

Footnote 16:

     The legislative history of AS 09.65.070(d)(5) confirms this
interpretation, making it clear that the statute was designed to
offer immunity only for damages incurred when municipalities acted
as Good Samaritans by agreeing to perform state functions in lieu
of state personnel during emergencies.  See 1977-78 Senate
Community and Regional Affairs Committee File, microfiche #374
(explaining the proposed legislation as protecting local
governments acting as Good Samaritans and offering as examples
state/local mutual aid agreements for assistance at state airports
and situations in which local police respond in the absence of a
state trooper).

Footnote 17:

     See Adams v. City of Tenakee Springs, 963 P.2d 1047, 1050 &
n.3 (Alaska 1998) (citing R.E. v. State, 878 P.2d 1341, 1349
(Alaska 1994)).

Footnote 18:

     See Adams, 963 P.2d at 1050 (citing State, Dep't of Transp. &
Pub. Facilities v. Sanders, 944 P.2d 453, 456 (Alaska 1997)).

Footnote 19:

     See Adams, 963 P.2d at 1051; cf. Guerrero v. Alaska Hous. Fin.
Corp., 6 P.3d 250, 259 (Alaska 2000); Sanders, 944 P.2d at 456.

Footnote 20:

     Brady v. State, 965 P.2d 1, 16 (Alaska 1998).

Footnote 21:

     691 P.2d 281 (Alaska 1984).

Footnote 22:

     See id. at 283.

Footnote 23:

     Cf. Sanders, 944 P.2d at 459.

Footnote 24:

     See, e.g., Adams, 963 P.2d at 1051 ("Decisions about how to
allocate scarce resources are matters of policy immune from
judicial review."); Estate of Arrowwood v. State, 894 P.2d 642, 646
(Alaska 1995) ("It is well established that both legislative
appropriations and executive department budget decisions are
discretionary functions immune from judicial inquiry.").

Footnote 25:

     963 P.2d at 1050-51.

Footnote 26:

     894 P.2d at 642.

Footnote 27:

     Id. at 646.

Footnote 28:

     498 P.2d 712 (Alaska 1972).

Footnote 29:

     Id. at 722.

Footnote 30:

     See Era Helicopters, Inc. v. Digicon Alaska, Inc., 518 P.2d
1057, 1061-62 (Alaska 1974); cf. 1 Dan B. Dobbs, Law of Remedies
sec. 5.13(1), at 836-37 n.11 (2d ed. 1993) (describing a rule of
measure of damages as the lesser of diminished value or repair
costs as a variant on general rule that the measure of damages for
harm to chattel is the sum by which market value has been

Footnote 31:

     See Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 154
(Alaska 1992); see also Pugliese v. Perdue, 988 P.2d 577, 580
(Alaska 1999). 

Footnote 32:

     Otness v. United States, 178 F. Supp. 647, 652 (D. Alaska

Footnote 33:

     649 P.2d 932 (Alaska 1982).

Footnote 34:

     See id. at 936.

Footnote 35:


Footnote 36:


Footnote 37:

     See Cole v. Bartels, 4 P.3d 956, 958 (Alaska 2000); Hancock v.
Northcutt, 808 P.2d 251, 261 (Alaska 1991) (reversing the denial of
prejudgment interest when defendants failed to prove that the award
of such interest would result in a double recovery); State Farm
Fire & Cas. Co. v. Nicholson, 777 P.2d 1152, 1158 (Alaska 1989)
(permitting prejudgment interest on future damages when there was
no risk of double recovery).

Footnote 38:

     See Cole, 4 P.3d at 958.