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Kiokun v. State, Dept. of Public Safety (7/25/2003) sp-5717
Kiokun v. State, Dept. of Public Safety (7/25/2003) sp-5717
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
NANCY KIOKUN and CYNTHIA )
OLRUN, ) Supreme Court No. S-9044
)
Petitioners, ) Superior Court No. 4BE-97-
274 CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, DEPART- ) [No. 5717 - July 25, 2003]
MENT OF PUBLIC SAFETY, )
)
Respondent. )
________________________________)
)
STATE OF ALASKA, DEPART- ) Supreme Court Nos. S-9558/9563
MENT OF PUBLIC SAFETY, )
)
Appellant/Cross-Appellee, )
)
v. )
)
NANCY KIOKUN and CYNTHIA )
OLRUN, )
)
Appellees/Cross-Appellants. )
________________________________)
Petition for Review from the Superior Court
of the State of Alaska, and on appeal from
the Superior Court of the State of Alaska,
Fourth Judicial District, Bethel, Charles R.
Pengilly, Judge.
Appearances: Venable Vermont, Jr. and Gary
M. Guarino, Assistant Attorneys General,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for State of Alaska. Kari
L. Bazzy-Garber, Garber & Bazzy, P.C., and
Don C. Bauermeister, Burke & Bauermeister,
P.L.L.C., Anchorage, for Nancy Kiokun and
Cynthia Olrun.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
1. INTRODUCTION
Tort plaintiffs claimed the State of Alaska was liable
for the deaths of three people who perished in bitter mid-January
cold after they left their car in deep snow on a remote,
unmaintained road. The plaintiffs claimed the Alaska State
Troopers negligently failed to launch a search and rescue after
hunters told the troopers late the afternoon of January 15, 1996
they had found an unoccupied car, a "HELP" sign and arrow stamped
in the snow, and footprints heading east. The temperature was
then forty-five degrees below zero Fahrenheit. About fifty-eight
hours later Leah and Palmer Olrun and their young grandson were
found dead eight miles from the car. Assuming the troopers owed
a tort duty, we hold that the decision whether to initiate a
search and rescue is protected by discretionary function
immunity. We therefore reverse the judgment entered for the
plaintiffs, and remand for entry of judgment for the state.
II. FACTS AND PROCEEDINGS
Between 5:00 and 5:30 p.m. on January 15, 1996, hunters
Marcel Kania and Vernon Rice went to the Cantwell home-office of
Alaska State Trooper Ellis.1 Rice reported to Trooper Ellis's
wife by intercom that the hunters had seen an abandoned red
Subaru in deep snow on an unmaintained road at Mile 50 of the
Denali Highway. They found the car stopped in the middle of the
road in about eighteen inches of snow. They saw the word "HELP"
and an arrow stamped in the snow, and footprints heading east,
toward Paxson. Rice reported that people were in trouble and
needed help. The hunters did not find the car's occupants or
report its license plate number or any other identifying
features. The car was about fifty miles from Paxson and about
eighty miles from Cantwell. It had taken the hunters about two
hours and fifteen minutes to reach Cantwell. Trooper Ellis
immediately forwarded the information to the Fairbanks State
Troopers dispatcher, who relayed it to the Glennallen dispatcher.
At about 6:00 p.m. that night the Glennallen dispatcher
contacted Trooper Ellis, who provided all the information he had
about the vehicle. The Glennallen dispatcher then contacted
Trooper Pierce at the Paxson Lodge and asked him to check for
more information around the Lodge. At 6:25 p.m. the Glennallen
dispatcher contacted Trooper Heck to advise him of the hunters'
report. Trooper Heck asked Trooper Stevenson to travel to the
Subaru's location that night via snowmachine. Although Trooper
Stevenson initially agreed, both troopers decided that Trooper
Stevenson should not travel alone and that it would be best to
wait until morning. Trooper Heck returned to the Glennallen post
and contacted Trooper Ellis in Cantwell for more information.
Trooper Heck also left a message for Sergeant Maynard at his
home. Trooper Heck contacted one other trooper before ending his
shift. He did not, however, inform the Rescue Coordination
Center (RCC) that he would not be coordinating a response that
night. Sergeant Maynard advised the Glennallen dispatcher at
10:00 p.m. to have Trooper Pierce call him the next morning.
At 11:30 p.m. January 15 Trooper Siegfried of the
Anchorage post was contacted by the Anchorage dispatcher, who
reported that Leah Olrun, her husband, and her grandchild were
missing, along with their maroon Subaru. Trooper Siegfried
searched the Seward Highway for the Olruns between midnight and
2:20 a.m.
At 9:00 a.m. January 16 Sergeant Maynard contacted
Captain Clontz and they decided a search of the Denali Highway
using the Alaska State Trooper helicopter would be feasible when
the temperature rose above thirty-five degrees below zero. The
temperature was then minus fifty degrees Fahrenheit. At 2:33
p.m. the Anchorage Police Department dispatcher sent an all-
points message regarding the Olruns and the vehicle.
At 11:00 a.m. on January 17 a relative of the Olruns
reported to Trooper Gibson of the Anchorage post that the Olruns
had left Anchorage on Tuesday, January 11, heading toward the
Kenai Peninsula. After contacting dispatch and learning about
Trooper Siegfried's search earlier that morning, Trooper Gibson
informed the relative of the search. At 1:30 p.m. Sergeant
Stauber requested a Civil Air Patrol search for the Olruns.
After collecting more information, Sergeant Stauber requested
permission to authorize a Civil Air Patrol search of the highway
between Anchorage and Homer.
At 7:42 p.m. on January 17 Trooper Pierce reported to
Sergeant Maynard the connection he made between the "Be On The
Lookout" report, the report of the vehicle on the Denali Highway,
and the report of the missing Olruns. Sergeant Maynard
authorized an immediate search of the Glennallen area. The Olrun
vehicle was found at 1:00 a.m. on Thursday, January 18, 1996.
Two-and-a-half hours later the Olruns' frozen bodies were found
almost eight miles east of the vehicle.
Nancy Kiokun (Leah Olrun's mother) and Cynthia Olrun
(daughter of Leah and Palmer Olrun and mother of the decedent
child) filed suit against the State of Alaska and the State
Department of Public Safety in December 1997. We refer to the
plaintiffs collectively as "Kiokun," and to the defendants
interchangeably as the "state" or the "department." Kiokun moved
for summary judgment on the issue of the department's duty to
rescue. Relying on Lee v. State,2 the superior court ruled as a
matter of law that the state had a duty to go to the Olruns' aid
and that it had breached that duty. The court ruled that the
department was not entitled to discretionary function immunity
because the decision to conduct search and rescue operations was
operational. The case went to trial and the jury found that the
state's negligence was a legal cause of the three deaths and that
the department was fifty-one percent responsible for the Olruns'
deaths.3
This appeal follows.4
III. DISCUSSION
A. Standard of Review
Whether a governmental act is entitled to
discretionary function immunity is a matter of law.5
We review questions of law de novo.6 We review the
interpretation of statutes using our independent
judgment.7
B. Duty
Kiokun filed a motion to establish the state's duty to
the Olruns8 and a motion for partial summary judgment. The
superior court entered partial summary judgment against the
state, ruling that "[t]he State of Alaska through the Alaska
State Troopers owed a duty to the Olrun family to go to their
aid. . . . The State of Alaska breached its duty as a matter of
law." The superior court relied on Lee v. State9 to support its
conclusion.
Normally we do not reach the question of AS 09.50.250
discretionary function immunity unless we have first determined
that the state owed an actionable duty10 and that it is at least
disputed whether the state breached that duty. The state argues
that no actionable duty arose under statute, the department's
operating manual, our case law, or public policy. Kiokun argues
that the state owed a duty that arose out of statute, assumption
of duty, common law, and the department's operating manual.
Notwithstanding our usual practice when we consider
issues concerning tort claims against the state and discretionary
function immunity, we proceed in this case directly to the
immunity analysis because it better illustrates the public policy
issues that would also bear on a duty analysis. For our
purposes, therefore, we assume that the department owed a duty,
arising at some undetermined time, to commence a meaningful
search for the Olruns and possibly a rescue attempt.
C. Immunity
The state moved for summary judgment, arguing that its
failure to launch an immediate search and rescue was a decision
protected by discretionary function immunity.11 Kiokun opposed
the motion and asserted that the Department of Public Safety
Operating Procedures Manual, testimony from a former state
trooper, and Alaska statutes and case law all dictated that the
decision not to launch an immediate search and rescue was
operational and therefore not immune from a tort claim.12
Although we explain the doctrine in more detail below, it is
pertinent to note now that we distinguish between planning
activities and operational activities to determine whether the
state's actions are immune from a tort claim. Operational
activities are not immune.13
The superior court granted Kiokun summary judgment on
the duty issue, stating orally, "[A] duty to rescue does exist.
I rely on Lee and its progeny principally in recognizing that
duty. . . . I think there is a duty imposed on police officers
by law to rescue people in need." The superior court did not
undertake a discretionary function analysis. Instead, it stated,
"[t]his behavior . . . is operational activity." The court also
granted Kiokun summary judgment on the issue of breach of duty.
The court reserved the issue of causation for the trial jury.
The state advances three reasons to support its
appellate argument that the decision whether to initiate a search
and rescue is protected from tort claims by discretionary
function immunity. First, it contends that AS 18.60.120 governs
search and rescue initiation and is a permissive statute.14
Because the statute uses the word "may," the state concludes that
the legislature intended the department to use its discretion
when deciding whether to launch a search and rescue operation.
The state relies on our decision in State, Department of
Transportation & Public Facilities v. Sanders,15 in which we
looked to the language of the traffic regulations to determine
whether airport officials had a duty to enforce them. We
concluded that the use of the permissive "may" meant that the
airport officials had discretion whether to enforce the
regulations.16 The state claims that here, as in Sanders, we
should hold that the permissive language of the statute left the
decision whether to launch a search and rescue attempt to the
Department of Public Safety's discretion.
Second, the state asserts that the decision whether to
initiate a search and rescue is inherently based on resource
allocation and is therefore protected as a discretionary
function. It relies on cases in which we held that state
decisions that involved evaluation of road conditions to
determine whether to issue tickets to motorists driving at
unreasonable speeds17 and whether to close the Parks Highway due
to ice18 are protected against tort claims. In those cases we
held that the state's decisions were protected from tort claims
under the doctrine of discretionary function immunity because the
decisions involved evaluation of safety concerns.19 The
department argues that whether to initiate a search and rescue
depends on weather conditions, available manpower, and
"allocation of scarce emergency rescue resources." It analogizes
this case to Johnson v. United States, Department of Interior.20
The United States Court of Appeals for the Tenth Circuit there
held that the activities of park rangers in gathering information
and deciding whether to initiate a search and rescue balanced
"safety objectives" against practical resource considerations,
were "grounded in social and economic policy," and were therefore
within the federal discretionary function exception and protected
from tort claims.21
Finally, the department concedes that it could have
been subject to a tort claim had it initiated a negligent search
and rescue, but argues that because it did not undertake to
rescue the Olruns, it did not assume a duty that would render
discretionary function immunity inapplicable. In State v. Abbott
we held that the state undertook a duty when its winter
maintenance of the Seward Highway resulted in more dangerous
conditions.22 Because the state had undertaken the maintenance of
the highway, we held that it had undertaken an operational duty
and thereby waived its immunity.23 Similarly, in Adams v. State,
we held that the decision whether to inspect hotels was a
discretionary function but that once the state had inspected a
particular hotel it had waived immunity for incidents resulting
from the negligent inspection of that hotel.24 The department
argues here that because the troopers did not decide to initiate
a search and rescue, they did not undertake an operational duty
to rescue the Olruns. (The troopers ultimately did launch a
search in the vicinity of the Subaru based on the hunters'
report, but the decision to do so was made after the Olruns must
have already succumbed to the bitter cold, probably sometime
before daylight on January 16.)
Kiokun responds that the department's position is
antiquated and inappropriately impersonal. She contends that the
legislative history of AS 18.60.120 does not indicate that the
legislature intended the statute to immunize the state from
lawsuits related to search and rescue decisions. She contends
that the decision was operational, because the troopers had a
mandatory duty to commence a prompt search. Finally, she asserts
that the troopers assumed a duty to the Olruns after they
promised to follow up on the hunters' report.
"[W]e identify `discretionary' acts or functions by
examining whether the act or function can be described as
`planning' or `operational.' "25 We distinguish between decisions
that involve policy formation and those that involve policy
execution or implementation.26 This ensures that courts do not
step into the policy roles committed to other branches of
government.27 The United States Supreme Court has held that "if
the policies and programs formulated by the [agency] allow room
for implementing officials to make independent policy judgments,
the discretionary function exception protects the acts taken by
those officials in the exercise of this discretion."28
In holding that the state owed a duty to go to the
Olruns' aid, the superior court relied on Lee v. State, in which
we held that a state trooper had a duty to aid a girl whose arm
was in the mouth of a caged lioness at an amusement park.29
Kiokun contends that the duty imposed in Lee is inconsistent with
granting discretionary function immunity. It might be argued
that because the hunters' report revealed that persons were
potentially at high risk of injury or death, the same duty to
rescue imposed on the trooper in Lee also compelled the troopers
to respond here.
But the state did not argue in Lee that it was
protected by discretionary function immunity. (The question
there was whether the Alaska Good Samaritan Statute applied. We
held that it did not, because the trooper had a duty to
respond.30) The trooper had actually commenced a rescue effort in Lee but
allegedly performed it negligently. Moreover, a duty to conduct
a search or rescue does not inevitably carry with it a duty to
conduct an immediate search and rescue. The difference is
illustrated by the differences in the circumstances facing the
troopers in each case. In Lee, the child's companion ran from
the amusement park to a nearby trooper office for help.31 The
lioness had already grabbed the child's arm in its teeth, and the
companion had been unable to secure her release by striking the
lioness with a pipe.32 The trooper was able to respond
immediately. No issue was raised about any physical or practical
reasons for not immediately responding, and there was no claim
the trooper failed to respond promptly. In comparison, the
limited information the hunters conveyed lacked the immediacy of
the report received in Lee. More importantly, the formidable
distances, climatic conditions, and practical limitations on the
available transportation choices made it necessary to consider
factors not present in Lee.
In contrast, in Adams v. City of Tenakee Springs, we
held that staffing a fire department was discretionary partly
because it was a resource allocation decision.33 We relied in
that case on Estate of Arrowhead v. State34 and Industrial
Indemnification Co. v. State35 for the proposition that decisions
regarding resource allocation are immune from judicial review.
In Guerrero v. Alaska Housing Finance Corp., we held 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."36 We quoted
Abbott's holding that "[o]nce the initial policy determination is
made . . . decisions as to how that decision should be carried
out . . . [are] made at the operational level."37 Search and
rescues may fall into this category because before troopers
decide whether to launch a search or a rescue, they must evaluate
weather and safety conditions, determine if suitable resources
are available, and generally weigh the risks against the benefits
of a particular endeavor.
Angnabooguk v. State, Department of Natural Resources38
is particularly helpful in categorizing search and rescue
decisions. There, a fire burned out of control after the
Division of Forestry allegedly set a remedial fire that the
division did not have enough resources to contain. We held that
there was no actionable statutory duty of care to fight the fire
non-negligently.39 We further held that the department's internal
rules and guidelines did not create a duty of care.40 We did
hold, however, that the department owed a duty of care as a
matter of public policy.41 We relied on City of Fairbanks v.
Schaible,42 in which we held that when a fire department chooses
to fight a particular fire, it must do so non-negligently.43
We went on to say in Angnabooguk that neither the
Alaska Tort Claims Act nor our case law supported the
department's contention that all firefighting decisions are
protected by discretionary function immunity.44 First, we
observed that the plain language of the tort claims statute did
address some specific activities and we concluded that had the
legislature intended to immunize all firefighting activities it
could have said so in the statute.45 Second, we noted that we had
never held that an entire class of decisions was "necessarily
bound up with policy considerations" sufficient to immunize all
firefighting decisions.46 After reviewing the entirety of our
discretionary function immunity jurisprudence,47 we reiterated the
distinction between planning and operational decisions48 and
instructed the superior court on remand to determine for each
alleged negligent act whether it was a planning or an operational
decision.49
Just as we were not prepared in Angnabooguk to hold
that all firefighting decisions are entitled to discretionary
function immunity, we are not prepared in this case to say that
every search and rescue decision is immune from tort claims. We
hold here, however, that the initial decision in this case
whether to launch a search and rescue effort is sufficiently
based on resource allocation and public policy considerations
that it is immune.
In reaching that conclusion, we find Johnson v. United
States, Department of Interior50 particularly instructive. In
that case, a group of hikers climbing Buck Mountain in Grand
Teton National Park lost contact with Johnson, a member of the
group. One of the hikers notified park rangers that Johnson was
missing. The park rangers did not initiate a climbing search and
rescue until five hours after receiving the initial report that
Johnson was lost.51 The rangers initiated a helicopter search
early the next morning but Johnson had died of hypothermia the
previous evening after sustaining injuries while descending the
mountain.52 The United States Court of Appeals for the Tenth
Circuit reviewed the process by which the rangers made search and
rescue decisions. It recognized that they "must act without
reliance upon fixed or readily ascertainable standards when
making a search and rescue decision in the field."53 It then
considered whether the rangers' search and rescue decisions
"simply" involved weighing considerations under an "established
program" or whether they involved "the balancing of competing
policy considerations."54 It observed that "[t]he discretionary
function exception may apply in the absence of a conscious
decision, so long as the . . . search and rescue program allowed
room for the rangers to make independent policy judgments."55 The
court then held:
the rangers' decision if, when or how to
rescue inherently involves the balancing of
safety objectives against such practical
considerations as staffing, funding and
minimizing government intrusion. As such,
these decisions are grounded in social and
economic policy, and thus are shielded from
liability under the [Federal Tort Claims Act]
discretionary function exception.[56]
Kiokun argues that the troopers' decisions whether and
when to initiate a search and rescue are not discretionary. But
we think that a decision whether to conduct a search and rescue
is inherently a decision regarding public safety objectives and
the allocation of resources.
The Wisconsin Supreme Court offers a different way to
analyze search and rescues. It compares ministerial and
discretionary activities and on a case-by-case inquiry applies a
"known danger" exception to immunity.57 The court explained:
[A] dangerous situation will be held to give
rise to a ministerial duty only when "there
exists a known present danger of such force
that the time, mode and occasion for
performance is evident with such certainty
that nothing remains for the exercise of
judgment and discretion."
. . . .
For the known danger exception to apply, the
danger must be compelling enough that a self-
evident, particularized, and non-
discretionary municipal action is required.
The focus is on the specific act the public
officer or official is alleged to have
negligently performed or omitted.[58]
Lee v. State59 involved a particularized and non-
discretionary trooper response to aid a girl whose arm was
reported to be in the mouth of a lioness at a nearby amusement
park. It is a graphic example of a "known danger" situation.
The report identified a particularized threat, a victim already
in extreme jeopardy and unlikely to be able to protect herself
with her own resources, and a specific nearby location easily
reached by the responding trooper. Given these circumstances, no
conceivable discretion about whether to respond, when to respond,
and where to go was involved. However, under Wisconsin's
analysis, a report of the type received from the hunters cannot
be classified as involving a "known danger" because the proper
way to respond is not self-evident or non-discretionary.
Judgment and discretion must be exercised in deciding what to do
and how to do it in response to that sort of report.
In this case, the troopers received information about
the Olruns and formulated a response based on weather conditions,
accessibility of resources, and availability of manpower. The
hunters found the Olruns' car at Mile 50 on the unmaintained
Denali Highway, eighty miles from Cantwell and fifty miles from
Paxson. The car was also eight miles from the Maclaren River
Lodge and a mile and a half from Moore's Camp. After the hunters
found the car, it took them about two hours and fifteen minutes
to reach the Cantwell trooper post. The hunters did not know how
long the car had been abandoned when they found it, but because
they saw footprints and an arrow and "HELP" sign stamped in the
snow, they reported that there were people in trouble. It was
forty-five degrees below zero Fahrenheit the evening of January
15. The troopers did not know how the Olruns were dressed or
what provisions they had with them. The extreme temperatures made
aircraft searches or ground travel difficult or impossible.
We asked the parties for supplemental briefing on the
issue of what decisions were made by the troopers and when.60
Trooper Heck made the decision sometime between 6:25 p.m. and
7:20 p.m. on January 15 that it was too cold and dark to proceed
with rescue efforts that night, over an hour after the troopers
received the hunters' report. Because the hunters had to drive
about two hours to reach the Cantwell post, Trooper Heck made his
decision more than three hours after the hunters left the
abandoned vehicle. Kiokun's expert, an arctic engineer and
"specialist in frost formation in Alaska weather" testified that
the Olruns likely left their vehicle around 1:30 p.m. on January
15. This was perhaps six hours before Trooper Heck made his
initial decision. Trooper Heck determined that it was likely
that the Olruns could walk the eight miles to the lodge by the
time anyone could reach them and that resources were better spent
in the morning. Although the record establishes that Trooper
Heck was later disciplined by the Department of Public Safety for
failing to take further measures, for purposes of our
discretionary function immunity inquiry, it was within the
department's discretion for Trooper Heck to make his decision.
In personal injury actions against the state, the issue of
negligence arises only if the conduct at issue involves
performance of an operational function and thus falls outside the
protection of discretionary function immunity; by contrast,
because sovereign immunity does not constrain a state agency's
actions, the department may impose discipline for negligent
breaches of its standards of conduct regardless of whether those
breaches involve discretionary functions.61
We conclude that the evaluation of weather conditions
and resource availability is better left to the immediate
discretion and expertise of the Department of Public Safety than
evaluated in retrospect by the courts.62 We hold that the
decision whether to initiate a search and rescue operation
remains one of policy. Some, although not necessarily all,
decisions made after a search and rescue is commenced may be
operational.63
We have said that if the state has breached a statute
or regulation expressly requiring it to act under specific
circumstances, its decisions are not protected by discretionary
function immunity.64 Kiokun argues that the troopers had a
mandatory duty to go to the Olruns' aid under AS 44.41.020,
which provides that "[t]he Department of Public Safety shall
administer functions relative to the protection of life and
property." The department responds that AS 18.60.120 controls
searches and rescues. Alaska Statute 18.60.120 states:
Upon being notified that a person is lost,
injured, killed, or is in need of immediate
rescue, the commissioner of public safety or
a designee may appoint a competent person to
organize, direct, and guide a search and
rescue party for the purpose of rescuing or
retrieving the person of the person's
remains.
We read these two statutes as authorizing the state to conduct
search and rescue operations. We do not read them as imposing a
mandatory duty which would be enforceable in the abstract
regardless of the circumstances in a given situation. The
state's duty necessarily turns on the circumstances presented.
This duty squarely implicates the same resource allocation and
risk-benefit considerations best left to the persons who must
decide what to do when troopers receive a report like the one the
hunters made.
We similarly do not read the department's operations
manual to impose an actionable duty. The state's arguable
failure to adhere to the manual consequently does not prevent it
from invoking the discretionary function immunity defense.
IV. CONCLUSION
Because the troopers' decision whether to initiate a
search and rescue was protected from a tort claim by
discretionary function immunity, we REVERSE the judgment, VACATE
the jury verdict and damages award, and REMAND for entry of
judgment for the state.
_______________________________
1 The dates and times and other specific facts set out here
give context to the legal issues before us. And although we
sometimes refer to facts described in the administrative
investigation report, the dispositive facts are largely
undisputed.
2 490 P.2d 1206 (Alaska 1971).
3 The jury found that the department was fifty-one percent
responsible for the Olruns' deaths. It awarded $1,800,000 for
the Olruns' pre-death suffering, $451,996 in economic damages,
and $7,480 for funeral expenses. It awarded $3,000,000 to
Cynthia Olrun for losses relating to the death of her son and
$2,500,000 collectively to all surviving family members for loss
of society and mental distress damages.
4 Kiokun also filed a petition for review after the trial
court ruled that the Alaska wrongful death statute, AS 09.55.580,
does not allow claims for loss of adult consortium. The trial
court also ruled that the non-economic damages cap under former
AS 09.17.010 applied to wrongful death actions and the court
applied the cap to the jury's award. Kiokun cross-appeals these
two rulings. Our ruling on the immunity issue makes it
unnecessary to consider the issues raised in Kiokun's petition
and cross-appeal.
5 Angnabooguk v. State, Dep't of Natural Res., 26 P.3d 447
(Alaska 2001).
6 Kooly v. State, 958 P.2d 1106, 1107 (Alaska 1998).
7 Sauve v. Winfree, 985 P.2d 997, 999 (Alaska 1999).
8 A negligence action may lie against the state if the state
owed a duty of care to the plaintiffs. Mesiar v. Heckman, 964
P.2d 445, 448 (Alaska 1998).
9 490 P.2d 1206, 1210 (Alaska 1971) (holding that state
trooper had duty to aid girl whose arm was in mouth of lioness at
amusement park).
10 See Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 254
(Alaska 2000); Kooly, 958 P.2d at 1108 (deciding first whether
there is actionable duty before reaching immunity question).
11 AS 09.50.250 waives sovereign immunity, allowing certain
causes of action against the state, while simultaneously
shielding state discretionary functions from legal challenge. It
provides in pertinent part:
A person . . . having a . . . tort claim
against the state may bring an action against
the state in a state court that has
jurisdiction over the claim. . . . However,
an action may not be brought under this
section if the claim (1) . . . is an action
for tort, and 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.
12 Dep't of Transp. & Pub. Facilities v. Sanders, 944 P.2d 453,
456 (Alaska 1997) ("Only acts or functions occurring at the
planning level are entitled to immunity as discretionary
functions under AS 09.50.250.").
13 Id.
14 AS 18.60.120 provides:
Upon being notified that a person is lost,
injured, killed, or is in need of immediate
rescue, the commissioner of public safety or
a designee may appoint a competent person to
organize, direct, and guide a search and
rescue party for the purpose of rescuing or
retrieving the person or the person's
remains.
15 944 P.2d 453 (Alaska 1997).
16 Id. at 457; see also Wallace v. State, 557 P.2d 1120, 1123
nn.7, 8 (Alaska 1976).
17 Earth Movers, Inc. v. State, 691 P.2d 281, 283-84 (Alaska
1984).
18 Estate of Arrowwood v. State, 894 P.2d 642, 645-46 (Alaska
1995).
19 Id.; Earth Movers, 691 P.2d at 283.
20 949 F.2d 332, 338 (10th Cir. 1991).
21 Id. at 338, 339.
22 498 P.2d 712, 715-16 (Alaska 1972).
23 Id. at 716.
24 555 P.2d 235, 240 (Alaska 1976).
25 Sanders, 944 P.2d at 456 (citing Abbott, 498 P.2d at 720-
22).
26 Id.
27 See Indus. Indem. Co. v. State, 669 P.2d 561, 563 (Alaska
1983) ("[C]ourts must not intrude into realms of policy exceeding
their institutional competence."); Johnson v. State, 636 P.2d 47,
64 (Alaska 1981).
28 Berkovitz v. United States, 486 U.S. 531, 546 (1988).
29 490 P.2d 1206, 1210 (Alaska 1971).
30 Id. at 1208-09.
31 Id. at 1208.
32 Id.
33 963 P.2d 1047, 1050-51 (Alaska 1998).
34 894 P.2d 642, 646 (Alaska 1995).
35 669 P.2d at 564-65.
36 6 P.3d 250, 261-62 (Alaska 2000).
37 Id. at 262 (quoting Abbott, 498 P.2d at 722).
38 26 P.3d 447 (Alaska 2001).
39 Id. at 451-52.
40 Id. at 452.
41 Id. at 452-53.
42 375 P.2d 201 (Alaska 1962).
43 See also Adams v. City of Tenakee Springs, 963 P.2d 1047,
1049 (Alaska 1998) (affirming superior court in case in which
jury was instructed that city could not be held liable for
resource allocation but could be held liable for negligent
conduct).
44 26 P.3d at 454-55.
45 Id.
46 Id. at 455 (original emphasis).
47 Id. at 456 n.34.
48 Id. ("[T]he State's decision to engage in an activity is an
immune `planning' decision, while the decisions undertaken in
implementing the activity are operational, as long as the
implementation does not involve the consideration of policy
factors.").
49 Id. at 458.
50 949 F.2d 332 (10th Cir. 1991).
51 Id. at 334-35.
52 Id.
53 Id. at 338.
54 Id. at 339.
55 Id.
56 Id. at 339; see also Huber v. United States, 838 F.2d 398,
401 (9th Cir. 1988) (Coast Guard can decide whether to aid
vessel); In re Am. Oil Co., 417 F.2d 164, 168 (5th Cir. 1969)
(Coast Guard's search and rescue plan imposed no duty on
government to public).
57 Lodl v. Progressive N. Ins. Co., 646 N.W.2d 314, 323-24
(Wis. 2002); see also Hoskins v. Dodge County, 642 N.W.2d 213,
219-20 (Wis. App. 2002).
58 Lodl, 646 N.W.2d at 324 (quoting C.L. v. Olson, 422 N.W.2d
614 (Wis. 1988)).
59 490 P.2d 1206 (Alaska 1971).
60 In their supplemental briefing, both parties referred to the
administrative investigation report. The department objected on
the grounds that the report was not admitted into "record
evidence." After considering the department's objections, we
believe the report contains helpful information, and we have
relied on it in discussing some details of the troopers'
activities.
61 Kooly v. State, 958 P.2d 1106, 1108 (Alaska 1998).
62 See Sanders, 944 P.2d at 458-59 ("Because the governing
regulation provides no standards that a court might use to
analyze the non-enforcement decision, the non-enforcement
decision is protected by the discretionary function exception in
AS 09.50.250(1).").
63 Cf. Angnabooguk, 26 P.3d at 459 ("[C]ertain on-the-scene
firefighting tactical decisions may be considered discretionary
because they entail resource allocation decisions or considered
decisions of firefighting policy that are properly vested in the
officials in charge.").
64 See id. at 457.
