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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wongittilin et al. v State et al. (12/07/2001) sp-5509

Wongittilin et al. v State et al. (12/07/2001) sp-5509

     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
                                 

MARY ANN WONGITTILIN, for     )    Supreme Court No. S-9251
herself and as personal       )
representative                )
of the Estate  of             )
Lenora J. Wongittilin,        )    Superior Court No.
and Mabelene Wongittilin,     )    2NO-98-54 CI
                              )    
             Appellants,      )    O P I N I O N
                              )    
     v.                       )    [No. 5509 - December 7, 2001]
                              )
STATE OF ALASKA, et al., and  )
the CITY OF SAVOONGA,         )    
                              )
             Appellees.       )    
______________________________)


          Appeal from the Superior Court of the State of
Alaska, Second Judicial District, Nome,
                       Ben J. Esch, Judge.

          Appearances: Ted Stepovich, Stepovich,
          Kennelly & Stepovich, Anchorage, for
Appellants.  Stephanie Galbraith Moore, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee State of Alaska; Jennifer M. Coughlin, Preston Gates &
Ellis, Anchorage, for Appellee City of Savoonga.

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

          CARPENETI, Justice.


I.   INTRODUCTION
          While driving intoxicated in Savoonga on the evening of
December 28, 1996, Howard Jackson struck and killed twelve-year-old
Lenora Wongittilin.  The police had had an outstanding warrant for
Jackson's arrest since August 5, 1996.  Wongittilin's personal
representative sued the State of Alaska and City of Savoonga for
negligent failure to arrest Jackson.  The superior court granted
summary judgment to the defendants on the grounds that they owed no
duty to Wongittilin.  The personal representative appeals.  We
affirm the judgment of the superior court because this case falls
within the class of cases in which we have previously held that the
government has no duty to the plaintiff that is cognizable in a
civil tort suit.
II.  FACTS AND PROCEEDINGS
          Howard Jackson has a criminal history consisting
primarily of assaults, weapons offenses, and alcohol-related
crimes.  On or about January 19, 1996, Jackson was charged in Nome
with various offenses related to sexual assault and domestic
violence.  He pled no contest to three misdemeanor charges, and the
remaining charges were dismissed.  The magistrate sentenced Jackson
to 290 days imprisonment with 160 days suspended and gave him two
years probation.  The magistrate allowed Jackson's release for
subsistence hunting activities, provided that Jackson committed no
further crimes, drank no alcohol, and surrendered himself to
custody in Nome by June 30, 1996.
          Around May 1 Jackson attempted suicide by shooting
himself in the chest.  Jackson did not surrender himself to custody
by June 30, and the magistrate issued a warrant for his arrest. 
The state troopers received the warrant on August 5. 
          On September 25 Trooper Johnston traveled to Savoonga and
met with Jackson at the city hall.  They discussed Jackson's
suicide attempt.  Jackson stated that he was sober at the time of
his suicide attempt, had been to counseling since the attempt, and
had no more serious thoughts of suicide.  Johnston did not arrest
Jackson on the outstanding warrant because he believed the return
flight to Nome was full.  Court Service Officer Holly corroborated
Johnston's belief. 
          On at least one occasion in late November, Jackson got
drunk and was recklessly firing a shotgun, according to the
allegations of three Savoonga residents.  Neither Trooper Johnston
nor Officer Holly recalled any reports of problems caused by
Jackson before December 28. 
          On the evening of December 28, Jackson drank excessively
and drove his four-wheeler at high speed through Savoonga.  Jackson
struck and killed Lenora Wongittilin. 
          Wongittilin's personal representative sued the State of
Alaska and the City of Savoonga for negligent failure to arrest
Jackson.  The state moved for summary judgment, arguing that the
mandatory-arrest domestic-violence statute, AS 18.65.530, does not
permit a civil action for alleged failure to arrest; that the state
had no actionable duty to arrest Jackson; and that the state was
immune from liability under the discretionary function exception of
AS 09.50.250.  The City of Savoonga joined the motion without
additional briefing. 
          Superior Court Judge Ben Esch granted the state's motion. 
First, the court ruled that the mandatory-arrest domestic-violence
statute did not apply because Jackson was conditionally released on
April 11, 1996, before AS 12.30.027 and AS 18.65.530 became
effective on July 1. [Fn. 1]  Neither party appeals this ruling.
          Second, the court concluded that the determination of
duty was covered by Waskey v. Municipality of Anchorage. [Fn. 2] 
The court explained that Waskey rejected the imposition of a duty
on the police to conduct criminal investigations non-negligently
and that the present case presented a similar situation where
imposition of a tort duty would improperly infringe upon police
discretion.
          Third, the court concluded that even if a duty existed,
discretionary immunity under AS 09.50.250 barred the action.  The
court interpreted the permissive language of AS 18.65.080, which
states that the police "may"execute warrants, to encompass a
discretionary function that was therefore immune. 
          Fourth, the superior court concluded that there was no
special relationship between the police and Jackson based on
Restatement (Second) of Torts sec. 315 (1965).  The court decided
that
because Jackson's probation did not include active supervision,
"much of the rationale for finding a special relationship [was]
lost. . . .  [T]here was no increased ability to foresee Jackson's
danger."
          Wongittilin appeals the superior court decisions that no
duty exists, that immunity applies, and that no special
relationship existed.
III. STANDARD OF REVIEW
          We review a grant of summary judgment de novo. [Fn. 3] 
All reasonable factual inferences are drawn in favor of the non-
moving party "to determine whether genuine issues of material fact
exist and whether the moving party is entitled to judgment as a
matter of law."[Fn. 4]  In reviewing questions of law, we apply
our independent judgment and adopt the rule of law that is most
persuasive in light of precedent, reason, and policy. [Fn. 5]
IV.  DISCUSSION
     A.   The Police Did Not Owe Wongittilin a Duty to Arrest
Jackson on an Existing Warrant.
          Actionable duty is a question of law and public policy:
"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."[Fn. 6]  To determine whether actionable duty
exists, we first look for a duty imposed by statute. [Fn. 7]  If
none exists, we then determine if the current case falls in the
class of cases controlled by existing precedent. [Fn. 8]  If no
closely related case law exists, we weigh the public policy
considerations enumerated in D.S.W. v. Fairbanks North Star Borough
School District. [Fn. 9]  "The 'precise nature and extent' of a
duty 'is a question of law which can be decided at the summary
judgment stage.' "[Fn. 10]
          1.   The police have no statutory duty to arrest. 
          Wongittilin argues that the combination of the language
of the warrant and AS 18.65.090 [Fn. 11] establishes a statutory
duty to arrest.  The bench warrant states, "To Any Peace Officer Or
Other Authorized Person: You are commanded to arrest the defendant
and bring the defendant before the nearest available judicial
officer without unnecessary delay . . . ." Alaska Statute
18.65.090 provides that the Alaska Department of Public Safety
"shall assist"other governmental departments.  Wongittilin argues
that the police, as members of the Department of Public Safety,
have a duty to assist other governmental departments, including the
judicial branch of government.  When the court commands the police
to arrest, Wongittilin reasons, the duty to assist the judiciary
becomes a duty to execute the arrest warrant. 
          The state contends that while AS 18.65.080 [Fn. 12]
specifies the authorities and duties of the state troopers, it does
not impose a duty to execute warrants.  The state contends further
that, to the extent that AS 18.65.080 and .090 conflict, the more
specific, section .080, should control. 
          We agree that AS 18.65.080 does not impose a duty on the
police to execute warrants.  Alaska Statute 18.65.080, entitled
"Powers and duties of department and members of state troopers,"
[Fn. 13] specifically covers police duties.  It provides that state
troopers "may . . . execute any lawful warrant or order of arrest."
[Fn. 14]  The word "may"in a statute "affords the [police] officer
. . . permissive authority, not an obligatory duty."[Fn. 15] 
Because section .080 uses the permissive "may,"it does not create
a duty to arrest on an outstanding warrant.
          Alaska Statute 18.65.090 does not conflict with AS
18.65.080.  The purpose of section .090 is to require cooperation
between governmental departments to enforce the law.  Alaska
Statute 18.65.090 imposes a duty on the police to assist other
governmental departments but not a general duty to protect the
public. [Fn. 16]  Thus, neither statute establishes a police duty
to execute outstanding warrants.
          Wongittilin also argues that Alaska Criminal Rule 4 [Fn.
17] imposes on the police a duty to arrest when a warrant is
issued.  We disagree.
          Alaska Criminal Rule 4 cannot impose a duty to arrest on
the police.  While the rule does use the mandatory language "shall,"
imposing a tort duty on the police is beyond the scope of the
Criminal Rules of Procedure.  The scope of the Criminal Rules is
limited to "govern[ing] the practice and procedure in the superior
court in all criminal proceedings."[Fn. 18]   Moreover, the
context of Rule 4(c)(1) indicates that the rule's purpose is to
define authority   not to impose a duty   to execute warrants and
to serve civil summons.  Rule 4 allows any peace officer or any
other authorized person to serve a summons but allows only the
police or other authorized officers to execute a warrant.  Thus,
Alaska Criminal Rule 4 does not impose a duty to arrest.
          2.   This case is within the class of cases previously
decided that find no duty to execute a warrant and no duty to
conduct a criminal investigation without negligence.
          Wongittilin argues that this case is in the class of
cases defined by Division of Corrections v. Neakok, [Fn. 19] and
thus a duty exists.  Conversely, the state argues that the superior
court correctly concluded that no duty existed according to Waskey
v. Municipality of Anchorage. [Fn. 20]  We conclude that Neakok
does not apply, and that Waskey and the recently decided Dore v.
City of Fairbanks [Fn. 21] describe a class of cases that
encompasses this case.
          In Neakok, Clifford Nukapigak, who had a history of
violence while intoxicated, was convicted of assault and rape and
sentenced to six years imprisonment. [Fn. 22]  After he was paroled
without any special condition prohibiting him from drinking
alcohol, Nukapigak drank heavily and murdered his stepdaughter, her
boyfriend, and another woman. [Fn. 23]  Neakok, as personal
representative of the deceased, sued the state for negligence. [Fn.
24]  We held that "state corrections personnel have the duty to use
due care in supervising parolees and in protecting the foreseeable
victims of parolees they know, or reasonably should know, to be
dangerous."[Fn. 25]  We particularly noted that a special
relationship existed between Nukapigak and the state because of
Nukapigak's status as a parolee and the close observation during
more than four years of incarceration that led prison counselors to
conclude that Nukapigak presented a danger to society if he resumed
drinking. [Fn. 26]
          This case is not controlled by Neakok.  In Neakok,
Nukapigak was on supervised release. [Fn. 27]  The court assigned
him a parole officer. [Fn. 28]  Here, Jackson was released without
any provision for active supervision.  Also, in Neakok, Nukapigak
was imprisoned for more than four years, during which time he was
observed by prison counselors who determined he might be dangerous
if he resumed drinking alcohol. [Fn. 29]  Jackson served only
twenty-three days, and the record contains no evidence of
observation or counseling during that time.  The relationship
between Nukapigak and the state is sufficiently different from the
relationship between Jackson and the state that this case is not in
the same class as Neakok.  Accordingly, Neakok does not control
this case.
          To the extent that Wongittilin premises the existence of
duty on a special relationship between the police and Jackson, the
analysis of our recent decision in Dore v. City of Fairbanks
applies.  In Dore, an estranged husband, who had previously made
threats to kill his spouse, murdered her seven days after a warrant
for his arrest was issued because he had harassed her. [Fn. 30]  We
concluded that the police had no duty in that situation because no
duty was imposed by statute, the facts did not indicate imminent
harm as in City of Kotzebue v. McLean, [Fn. 31] and the Restatement
framework indicated no duty to control the husband as a dangerous
third party. [Fn. 32]
          In concluding that the state had no duty, we noted the
general rule stated in Restatement sec. 315:
          There is no duty so to control the conduct of
a third person as to prevent him from causing physical harm to
another unless
               (a) a special relation exists between the
actor and the third person which imposes a duty upon the actor to
control the third person's conduct, or
               (b) a special relation exists between the
actor and the other which gives to the other a right to
protection.[ [Fn. 33]]

We concluded that no special relationship existed between the
husband and the police because the police never "took charge"of him
as required by Restatement of Torts sec. 319 for a special
relationship between a defendant and a dangerous third party. [Fn.
34]  Given this lack of a special relationship in Dore, we
concluded that the police had no tort duty to arrest. [Fn. 35]
          Similarly, in the instant case, no special relationship
under Restatement sec. 319 exists because the police never took
charge
of Jackson.  Restatement sec. 319 states that "[o]ne who takes
charge
of a third person whom he knows or should know to be likely to
cause bodily harm to others if not controlled is under a duty to
exercise reasonable care to control the third person to prevent him
from doing such harm."[Fn. 36]  While the police did question
Jackson at the city hall, Trooper Johnston did not execute the
outstanding arrest warrant on Jackson for logistical reasons. 
Therefore, Johnston never took charge of Jackson, and no special
relationship existed under Restatement sec. 319.
          The superior court held that this case was in the class
of cases covered by Waskey v. Municipality of Anchorage. [Fn. 37] 
Wongittilin argues that Waskey is distinguishable on its facts
because the instant case does not concern negligent investigation
but rather a failure to execute a warrant.  The state reads Waskey
more broadly and argues that Waskey controls because both cases
involve claims of negligence in criminal investigation.  
          In Waskey, we "refused to recognize a tort of negligent
investigation of a crime."[Fn. 38]  Evan Waskey was arrested for
assault.  He gave his brother's name, John, to the arresting
officer, and Evan was released on bail.  When Evan failed to
appear, a warrant issued for John Waskey, and the police arrested
John instead of Evan.  John sued the city for negligence.  We held
that "[t]he arresting officer owed John no duty of care to proceed
without error when he initiated legal action against Evan.  Because
the arresting officer owed John no duty of care, no duty was
breached . . . ."[Fn. 39]
          To the extent that Wongittilin argues that the police
have a general duty to execute warrants without negligence, Waskey
controls this case.  In both cases, alleged police negligence in
arresting a suspect resulted in injury to an innocent third party. 
In Waskey, the police's alleged negligence in attempting to arrest
Evan led to John's wrongful arrest.  Here, the police's alleged
negligence in failing to arrest Jackson led to Wongittilin's death. 
Absent some sort of special relationship as discussed above, the
police have no general duty to execute a warrant. [Fn. 40]
          Admittedly, Waskey involved affirmative police conduct
whereas the instant case involves a failure to act.  We reasoned
that there was no duty to John Waskey in part because we did not
want to overly burden the police with liability for instituting
legal action while performing their duties in good faith.  Waskey
expressly relied upon the analysis of the D.S.W. factors in Stevens
v. State, Department of Revenue. [Fn. 41]  In Stevens, we discussed
in detail the factor of the burden on the defendant and
consequences to the community and decided that imposing liability
for negligently brought lawsuits would be too severe. [Fn. 42] 
Stevens based its reasoning on the desire to protect affirmative
police conduct initiating legal action. [Fn. 43]  
          While this specific reason of protecting police
initiation of legal action is not present here, the more general
concern of burden on the police and consequences to the community
is still present.  Imposing a duty to execute a warrant would allow
claims in all cases where a person with an outstanding warrant
injures another.  It would also impose liability in those cases
where police failure to execute the warrant was determined, with
twenty-twenty hindsight, to have been negligent.  "Such a decision
would invariably lead to the diversion of resources from other
projects and investigations.  Decisions regarding the allocation of
limited resources are better left to the executive branch."[Fn.
44]  Plus, the decision of when to execute an arrest warrant is a
fundamental aspect of police discretion.  Imposing a duty to
execute warrants will unnecessarily constrain the discretion that
the police need in making the "quick and important decisions that
characterize a criminal investigation."[Fn. 45]  Because imposing
a general duty to execute warrants burdens the police as much as
imposing a duty to initiate investigations without negligence, this
alternate rationale supports a broad reading of Waskey to include
the instant case.
          We conclude that the police had no duty cognizable in a
civil tort suit to arrest Jackson as this case falls within the
class of cases described by Waskey and Dore.  Because we hold that
the police had no duty to arrest Jackson based on our existing case
law, we need not perform a D.S.W. factor analysis or reach the
question of whether the discretionary function immunity applies.
     B.   The Superior Court Properly Granted Summary Judgment to
the City of Savoonga Because the Analysis of Duty Applied Equally
to State and City.
          Whether the state or the city is the defendant does not
substantially affect the duty analysis in this case.  The statutory
duty analysis is the same. [Fn. 46]  Our case law, Waskey and Dore,
likewise applies similarly to the state and city.  Because the
superior court properly determined that the state had no duty under
statute or case law, the city likewise had no duty in this case.  
V.   CONCLUSION
          Because no statutory duty exists and this case is in the
class of cases defined by Waskey and Dore, the police had no tort
duty to execute the warrant in this case.  Accordingly, we AFFIRM
the judgment of the superior court.


                            FOOTNOTES


Footnote 1:

     See ch. 64, sec. 83, SLA 1996.


Footnote 2:

     909 P.2d 342 (Alaska 1996).


Footnote 3:

     See Brady v. State, 965 P.2d 1, 8 (Alaska 1998).


Footnote 4:

     United Airlines, Inc. v. Good Taste, Inc., 982 P.2d 1259, 1262
(Alaska 1999) (citing West v. City of St. Paul, 936 P.2d 136, 138
(Alaska 1997)).


Footnote 5:

     See State, Dep't of Transp. and Pub. Facilities v. Sanders,
944 P.2d 453, 456 (Alaska 1997) (citing Great Am. Ins. Co. v. Bar
Club, Inc., 921 P.2d 626, 627 (Alaska 1996)).


Footnote 6:

     Mesiar v. Heckman, 964 P.2d 445, 448 (Alaska 1998) (quoting
William L. Prosser, The Law of Torts sec. 53, at 325 (4th ed. 1971)).


Footnote 7:

     See Estate of Day v. Willis, 897 P.2d 78, 81 (Alaska 1995). 


Footnote 8:

     See City of Kotzebue v. McLean, 702 P.2d 1309, 1314 (Alaska
1985).


Footnote 9:

     628 P.2d 554, 555 (Alaska 1981); see also Waskey v.
Municipality of Anchorage, 909 P.2d 342, 343-44 (Alaska 1985).


Footnote 10:

     Smith v. State, 921 P.2d 632, 634 (Alaska 1996) (quoting
Mulvihill v. Union Oil Co., 859 P.2d 1310, 1314 n.4 (Alaska 1993)).


Footnote 11:

     AS 18.65.090 is a general statement of interdepartmental
assistance: "The Department of Public Safety shall assist other
departments of the state, municipal, and federal governments in the
enforcement of criminal laws and regulations pertaining to those
departments."


Footnote 12:

     AS 18.65.080 specifies the powers and duties of the state
troopers:
          The Department of Public Safety and each
member of the state troopers is charged with the enforcement of all
criminal laws of the state, and has the power of a peace officer of
the state or a municipality and those powers usually and
customarily exercised by peace officers.  Each member of the state
troopers may prevent crime, pursue and apprehend offenders, obtain
legal evidence, institute criminal proceedings, execute any lawful
warrant or order of arrest, make an arrest without warrant for a
violation of law committed in the presence of the state trooper,
and may cooperate with other law enforcement agencies in detecting
crime, apprehending criminals, and preserving law and order in the
state.


Footnote 13:

     Id.


Footnote 14:

     Id.


Footnote 15:

     Posey v. State, 225 Cal. Rptr. 830, 839 (Cal. App. 1986)
(interpreting statute providing that police "may"remove car from
road when it creates hazard as granting discretionary authority and
not imposing duty).


Footnote 16:

     Because the purpose of AS 18.65.090 is to foster cooperation
between various governmental agencies and not to protect the public
from criminals with outstanding warrants, Wongittilin cannot derive
an actionable duty from section .090.  See Lundquist v. Dep't of
Pub. Safety, 674 P.2d 780, 782-85 (Alaska 1983).


Footnote 17:

     Alaska R. Crim. P. 4(c) indicates by whom and in what manner
a warrant must be executed:   
          (c) Execution or Service and Return.
               (1) By Whom.  The warrant shall be
          executed by any peace officer or other officer
authorized by law.  The summons may be served by any peace officer
or by any other person authorized to serve a summons in a civil
action.
               . . . .
               (3) Manner.  The warrant shall be
executed by the arrest of the defendant.


Footnote 18:

     Alaska R. Crim. P. 1.


Footnote 19:

     721 P.2d 1121 (Alaska 1986).


Footnote 20:

     909 P.2d 342 (Alaska 1996).


Footnote 21:

     31 P.3d 788 (Alaska 2001).


Footnote 22:

     See Neakok, 721 P.2d at 1123.


Footnote 23:

     See id. at 1123-24.


Footnote 24:

     See id.


Footnote 25:

     Id. at 1130.


Footnote 26:

     See id. at 1126.


Footnote 27:

     See id. at 1123.


Footnote 28:

     See id.


Footnote 29:

     See id. at 1126.


Footnote 30:

     31 P.3d at 789.


Footnote 31:

     702 P.2d 1309 (Alaska 1985).


Footnote 32:

     See Dore, 31 P.3d at 796. 


Footnote 33:

     Restatement (Second) of Torts sec. 315 (1965).  The Restatement
further defines sec. 315(a) special relationships in sec.sec. 316-
19 and sec.
315(b) special relationships in sec.sec. 314A & 320.  See Restatement
(Second) of Torts sec. 315 cmt. c (1965).


Footnote 34:

     See Dore, 31 P.3d at 794. 


Footnote 35:

     See id. 


Footnote 36:

     Restatement (Second) of Torts sec. 319.


Footnote 37:

     909 P.2d 342 (Alaska 1996).


Footnote 38:

     Id. at 344.


Footnote 39:

     Id. 


Footnote 40:

     Cf. Dore v. City of Fairbanks, 31 P.3d 788 (Alaska 2001) with
Division of Corrections v. Neakok, 721 P.2d 1121 (Alaska 1986); see
Restatement (Second) of Torts sec. 315 (1965).


Footnote 41:

     746 P.2d 908 (Alaska 1987).


Footnote 42:

     See id. at 911.


Footnote 43:

     See id.  ("The law supports the use of litigation as a social
means for resolving disputes, and it encourages honest citizens to
bring criminals to justice.  Consequently, the accuser must be
given a large degree of freedom to make mistakes and misjudgments
without being subjected to liability . . . ."(alteration in
original) (quoting W. Keeton & W. Prosser, The Law of Torts sec. 119,
at
871)). 


Footnote 44:

     Hawks v. State, Dep't of Pub. Safety, 908 P.2d 1013, 1017
(Alaska 1995).


Footnote 45:

     See Wongittilin v. Jackson, et al., No. 2NO-98-54 Ci. (Alaska
Super., April 23, 1999) (internal quotation marks omitted) (citing
Smith v. State, 324 N.W.2d 299, 301 (Iowa 1982)).


Footnote 46:

     Wongittilin has not identified any police officer employed by
the City of Savoonga or established under which statute such
officer may have had a duty.  Alaska Statute 18.65.010, which
pertains to "special officers,"may apply in this case.  Alaska
Statute 18.65.670, which creates the "village public safety officer
program,"may also apply.  The former is analogous to AS 18.65.080,
analyzed above at Part IV.A.1, in establishing permissive
authority, but no duty, to execute warrants.  Cf. AS 18.65.080
("Each member of the state troopers may . . . execute any lawful
warrant or order of arrest . . . .") with AS 18.65.010(b) ("Each
person appointed as a special officer under this section may . . .
execute warrants of arrest . . . issuing from any court of the
state.  A special officer may make arrests in the same manner as a
member of the division of state troopers.").  The latter does not
address the subjects of authority or duty to arrest at all.