Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Guerrero v. AHFC (11/04/2005) sp-5954

Guerrero v. AHFC (11/04/2005) sp-5954

     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

ALEXANDER E. GUERRERO, )
a minor child, by his next friend and ) Supreme Court No. S-11024
father, CRISTIAN GUERRERO; )
CRISTIAN GUERRERO and JUANA ) Superior Court No. 3AN-96-8506 CI
GUERRERO, individually, )
)
Appellants, )
)
v. ) O P I N I O N
)
ALASKA HOUSING FINANCE )
CORPORATION and STATE OF ) [No. 5954 - November 4, 2005]
ALASKA, DEPARTMENT OF )
TRANSPORTATION AND PUBLIC )
FACILITIES, )
)
Appellees. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  Philip Paul Weidner, Weidner  &
          Associates,  Inc., Anchorage for  Appellants.
          David  Karl  Gross and Stephen H.  Hutchings,
          Birch, Horton, Bittner and Cherot, Anchorage,
          for    Appellee   Alaska   Housing    Finance
          Corporation. Venable Vermont, Jr.,  Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellee  State  of  Alaska,  Department   of
          Transportation and Public Facilities.

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

          BRYNER, Chief Justice.

I.   INTRODUCTION
          Alexander  Guerrero was hit by a car as  he  crossed  a
busy street near a public housing complex where he and his family
were   living.   His  parents  sued  the  Alaska  Department   of
Transportation  and  Public Facilities  (the  department),  which
built  and maintained the street, and the Alaska Housing  Finance
Corporation  (the  corporation), which  owned  and  operated  the
housing   complex.   The  Guerreros  alleged  negligent   design,
construction,  maintenance, and failure to  warn.   The  superior
court  dismissed the Guerreros complaint for failing to  state  a
viable  claim,  ruling that the department  was  immune  and  the
corporation  owed  no duty to protect tenants  from  injury  off-
premises.   We  reversed  and remanded for  further  proceedings,
finding   the  complaint  sufficient  on  its  face   to   allege
potentially viable claims against both defendants.1
          On  remand,  the  superior court allowed  discovery  to
proceed   but  eventually  granted  summary  judgment   to   both
defendants,  finding  that the record  revealed  no  grounds  for
requiring  the corporation to protect Guerrero from  off-premises
danger, and no grounds for a viable claim against the department.
We  affirm as to the corporation, but reverse in part as  to  the
department, holding that the record contains evidence that is  at
least minimally sufficient to show that the department might have
owed  and  breached an operational duty to post adequate  warning
signs.
II.  FACTS AND PROCEEDINGS
          This  is the second time this case has come before  us.
We summarized the relevant facts in the first appeal, Guerrero v.
Alaska  Housing Finance Corporation, State of Alaska,  Department
of Public Transportation (Guerrero I):
               Five-year-old Alexander Guerrero was hit
          by a car and severely injured as he attempted
          to  cross C Street near its intersection with
          22nd Avenue in Anchorage.[2]  The section  of
          C  Street where the accident occurred is part
          of  a traffic couplet on A and C Streets (the
          A/C  Couplet)1 that was built by  the  Alaska
          Department   of  Transportation  and   Public
          Facilities (the department). At the  time  of
          the  accident, Alexander and his family lived
          at  the  Loussac Family Housing Complex  (the
          Loussac   Complex),   a  low-income   housing
          project   sponsored  by  the  Alaska  Housing
          Finance  Corporation  (the  corporation),   a
          public    corporation   within   the   Alaska
          Department of Revenue.2  The Loussac  Complex
          is  directly adjacent to the accident  scene,
          situated  between A Street  on  the  east,  C
          Street on the west, 20th Avenue on the north,
          and 22nd Avenue on the south.
          
               The  Guerreros  sued the department  and
               the corporation, alleging negligence in the
          design, construction, and maintenance of  the
          A/C Couplet and related pedestrian systems in
          the  vicinity of C Street and 22nd Avenue  as
          they  relate to the occupants of the  Loussac
          Complex.    They   also  alleged   that   the
          corporation  had  a duty  as  a  landlord  to
          ensure
          
          __________________

             1  The A/C traffic couplet consists of two
          multi-lane, one-way streets  A Street  and  C
          Street   that run in opposite directions  and
          are  designed  to  channel rush-hour  traffic
          smoothly   into  and  out  of  the   downtown
          Anchorage area.
          
             2  See AS 18.56.020.
          
          that  conditions  on  its  property  did  not
          subject tenants to hazards on C Street.
          
               The department and the corporation moved
          to  dismiss under Alaska Civil Rule 12(b)(6).
          The department claimed discretionary function
          immunity   under   AS   09.50.250(1).     The
          corporation argued, first, that its duty as a
          landlord  did not extend beyond its  property
          and,  second, that it, too, was immune  under
          the discretionary function statute.
          
          . . . .
          
          [T]he  superior court granted the  defendants
          motions  and dismissed the case under  Alaska
          Civil  Rule  12(b)(6),  concluding  that  the
          amended  complaint failed to  state  a  claim
          upon  which  relief could be granted  against
          the department or the corporation.  The court
          ruled  that  the department was  entitled  to
          discretionary    function   immunity    under
          AS  09.50.250(1)  because installing  or  not
          installing safety features in specific  areas
          is   precisely  the  type  of  decision   the
          doctrine    of    sovereign   immunity    for
          discretionary acts is meant to protect.   The
          court also ruled that the corporation had  no
          duty  to  protect the Guerreros from  traffic
          hazards,  finding it firmly established  that
          the  duty  of  safeguarding children  against
          obvious dangers off a landlords property does
          not fall on the landowner.[3]
          
          The  Guerreros  appealed, and we  reversed.   We  first
determined  that  neither the department nor the corporation  had
shown  beyond doubt that they owed Guerrero no duty of due  care.
          We held that the department owed a generalized duty of due care
to pedestrians, and that this duty does not vanish simply because
the  crossing  alleged in the complaint was unlawful.4   We  also
observed  that a dismissal against the corporation  on  the  duty
issue  would  not  have been proper unless  the  only  reasonable
inference  was  that the corporation owed the Guerreros  no  duty
whatsoever or owed a duty that was clearly and vastly narrower in
scope  than the duty the Guerreros asserted.5  We noted  that  we
had  never ruled that a landlords duty cannot extend off-premises
under    certain   circumstances   and   that   the   corporation
acknowledge[d]  that  it owe[d] a general  duty  to  protect  its
tenants from danger.6  And we found that a determination  of  the
scope  of  the  corporations duty would depend  on,  among  other
things, whether the corporation had obstruct[ed] access to a safe
pedestrian  underpass at 19th Avenue and C Street,  had  funneled
pedestrians  . . . toward the intersection at 22nd Avenue  and  C
Street,  and  whether  the corporation had undertake[n]  off-site
responsibilities, had influenced the projects design or plans  or
retained  a  measure of influence or control over  the  adjoining
roadway.7  Because these questions could not be resolved  on  the
basis  of the complaint alone, we held the corporation had failed
to  establish  that  the scope of its duty to the  Guerreros  was
vastly narrower than the duty the Guerreros asserted.8
          We further held that the defendants had not established
that  the  claims  against  them  were  barred  by  discretionary
function  immunity.   We  emphasized  that  what  qualifies  [for
discretionary  function  immunity]  often  depends  more  on  the
factual circumstances surrounding an agencys actions than it does
on  the actions inherent nature.9 And we pointed to the fact that
where we have upheld orders of dismissal, we based our ruling  on
an  extensive  factual record.10  We observed that  the  superior
court   had  dismissed  the  case  at  an  early  stage  in   the
proceedings,  when  the  Guerreros [had] had  no  opportunity  to
present evidence establishing the specific facts of their case.11
We concluded that the case should not have been dismissed without
discovery.  Accordingly we reversed the superior courts dismissal
against  both the department and the corporation and remanded  so
that   the  Guerreros  would  have  the  opportunity  to  conduct
discovery.12
          After  the  parties conducted discovery on remand,  the
department  and  the  corporation  filed   motions  for   summary
judgment,  again  arguing that they should prevail  because  they
owed  the  Guerreros no duty and were protected by  discretionary
function  immunity.  The superior court granted summary  judgment
to both defendants.
          The Guerreros appeal.
III. DISCUSSION
     A.   Standard of Review
          To  prevail  on  a  motion for summary  judgment,   the
moving  party  must offer admissible evidence demonstrating  that
there  are  no  disputed issues of material fact and  the  moving
party  is entitled to a judgment as a matter of law.13  Once  the
moving  party  has made a prima facie showing that  there  is  no
genuine  issue of material fact, the burden shifts  to  the  non-
          moving party to demonstrate that a genuine issue of fact exists
to  be  litigated  by  showing that  it  can  produce  admissible
evidence  reasonably  tending to dispute the movants  evidence.14
Because the validity of a trial courts ruling on summary judgment
presents   questions  of  law,  we  review  the   courts   ruling
independently,15  basing our review on  the  entire  trial  court
record    the  affidavits,  depositions, admissions,  answers  to
interrogatories  and similar material. 16  In  considering  these
materials, we give the non-moving party . . . the benefit of  all
reasonable  inferences  which can be  drawn  from  the  proffered
evidence.17
     B.   The Corporations Potential Liability
          The  Guerreros initially challenge the superior  courts
order  granting summary judgment to the corporation.  In  issuing
this order, the superior court found that nothing the corporation
could  have  done would have prevented the harm.  The court  also
found that the corporations decision not to fence off the housing
project  or  to  warn tenants of the dangers posed  by  C  Street
traffic  did not enhance those dangers.  The court reasoned  that
Guerrero, upon leaving Loussac Manor, would have ended up on  the
same  public  sidewalk faced with the same choice of  whether  to
cross the street at the designated areas regardless of any safety
measures taken by the corporation.  The court further noted  that
the  location of the egress route did not eject[] children . .  .
into  a  busy street but instead placed them on a public sidewalk
that  was  separated from C Street by a guardrail.   Given  these
circumstances, the court found that  [t]he well-worn path is  not
dangerous,  and  concluded that, even if the corporation  owed  a
duty  to protect its tenants children from some off-site dangers,
this  duty  was  vastly narrower than the  one  asserted  by  the
Guerreros and did not extend to protection from the dangers of  C
Street. The Guerreros challenge this ruling.
          In  Guerrero  I  we  acknowledged  that  we  had  never
addressed the issues of whether or when a landlord might  have  a
duty  to protect or warn tenants about dangers occurring on  land
adjacent  to  the  landlords premises.18   We  noted  that  other
jurisdictions are split on this issue:
          [T]he  traditional  view  still  the  decided
          majority  weighs against imposing a  duty  to
          warn   or  otherwise  protect  tenants   from
          dangers  of traffic on adjacent streets  over
          which   the   landlord  has   no   right   of
          possession,  management, or control.  But  an
          emerging  minority would  impose  a  duty  to
          protect  or  warn  in some situations;  these
          cases  apply  a  standard of reasonable  care
          under the totality of the circumstances  that
          considers possession, management, and control
          over  conditions at the accident site  to  be
          relevant  factors  but does  not  make  their
          absence dispositive as a matter of law.[19]
          
          As  in  Guerrero  I,  we find it  unnecessary  here  to
resolve  the  general  issue  of  off-site  liability.   Even  if
          landlords have a duty to protect their tenants from some off-site
dangers,  we think that the record does not support the Guerreros
claim  that the corporation had a duty to protect them  from  the
dangers alleged in this case.
          A  number  of  courts  have held  that,  under  certain
circumstances, a landlord may have a duty to protect tenants from
off-site dangers.  In Udy v. Calvary Corporation,20 a small child
was  severely  injured when he chased a basketball into  a  major
street  that was immediately adjacent to his backyard.21   Before
renting  the space for their mobile home, the parents  had  asked
the  landlord whether the road adjacent to the space  experienced
heavy  traffic  and  indicated that, if so,  they  would  not  be
interested  in  renting the space.22  The  landlord  assured  the
parents that there had never been any problems as a result of the
spaces  close proximity to the busy street.23  The parents rented
the  space only to discover that traffic was much worse than they
had been led to expect.  They repeatedly asked for permission  to
build  a  fence around their yard, but their landlord  repeatedly
denied these requests.24  The landlord argued that he had no duty
to  protect a tenant from dangers located outside the premises.25
The  Arizona Court of Appeals disagreed, ruling that a  landlords
duty  to  his tenants is not as a matter of law circumscribed  by
the  physical boundaries of the landlords property.26  The  court
broadly stated that a landlord must take such precautions for the
tenants  safety as a reasonably prudent person would  take  under
similar  circumstances  in  light of the  known  and  foreseeable
risks.27   But  it  also carefully narrowed  its  decision.   The
landlord in the case had conceded that the absence of a fence was
a  proximate cause of the accident; the court tailored its ruling
to this concession:  Harm that is caused, in whole or in part, by
an  activity or condition on particular premises cannot be viewed
as  unforeseeable as a matter of law merely because it happens to
manifest  itself beyond the property line.28        In Barnes  v.
Black,29 a private sidewalk connected the childrens play area  of
an  apartment complex with the apartment buildings; the  sidewalk
adjoined  a  driveway  that sloped steeply  downward  to  a  busy
street.30  While riding his big wheel tricycle along the sidewalk,
a child lost control and rolled down the steep driveway into busy
traffic  on the street below, where he was struck by  a  car  and
killed.31  The defendant landlord argued that he had no  duty  to
protect  his  tenants from unreasonable risk of  injury  off  the
premises  on a public street over which [he] ha[d] no  control.32
On  appeal  from an order granting the landlord summary judgment,
the California Court of Appeal rejected this argument, concluding
that  the  duty  of  care encompasses a duty  to  avoid  exposing
persons  to risks of injury that occur off site if the landowners
property  is maintained in such a manner as to expose persons  to
an  unreasonable risk of injury offsite.33 In so concluding,  the
court  distinguished an earlier California decision declining  to
hold the landlord liable after a child wandered from an apartment
building  into  an  adjacent street  and  was  hit  by  a  car.34
Describing the earlier case, the Barnes court emphasized that its
facts  established  no  close connection between  the  defendants
conduct and the childs injuries35  a circumstance that the Barnes
          court viewed as disfavoring an off-site duty.36  Considering the
circumstances  of  its  own  case,  the  Barnes  court  found   a
significant   difference,  observing  that  conditions   on   the
landlords property  the configuration of the private sidewalk and
the driveway  had directly contributed to the accident by causing
the  child  to be ejected into the public street.37  Barnes  thus
reversed the trial courts order of dismissal.38
          These  cases  and  other similar decisions39  highlight
several  useful  factors to consider in deciding if  an  off-site
duty  arose here: (1) whether the hazard was immediately adjacent
to the corporations property; (2) whether the corporation had any
right  or  ability to control or abate the off-site  hazard;  (3)
whether  that  hazard  was as open and obvious  to  the  projects
tenant as it was to the corporation; and (4) whether any activity
or  condition  on  the corporations property contributed  to  the
accident or enhanced the adjacent danger.
          The  superior court found that the corporations failure
to  take protective measures did not cause or enhance the  hazard
presented  by  C  Street. The court emphasized  the  corporations
uncontradicted evidence that the existing fence on the north side
of the apartments did nothing to obstruct access to the underpass
at  19th  Avenue  and C Street.  Noting that  the  Guerreros  had
acknowledged that the corporation was obliged to give them access
to  C  Street,  the court also found that there  appeared  to  be
nothing  the  corporation could have done to  prevent  them  from
end[ing]  up  on  the same public sidewalk faced  with  the  same
choice of whether to cross the street at the designated areas  or
not.   The  court accordingly ruled that even if the  corporation
had  some off-site duty, the evidence showed that the corporation
did not owe the Guerreros the duty at issue  to protect them from
the dangers of C Street traffic.
          We    agree.    The   Guerreros   undeniably    offered
considerable evidence indicating that the corporation  knew  that
children  living in the project could easily cross C  Street  and
that  crossing  the street would be dangerous  even  for  adults.
This  evidence  might reasonably suggest that it was  foreseeable
that  a  child  from the project might be seriously injured  when
attempting  to  cross  C  Street.  But Guerrero  cites  no  cases
holding  that  a  landlords  duty to protect  tenants  from  off-
premises  injury  can be triggered by mere awareness  of  obvious
danger  and foreseeable harm.  To the contrary, as we have  seen,
the  case law illustrates that something more has invariably been
required to hold landlords liable for off-site harm.
          The  Guerreros  maintain that the  unfenced,  well-worn
path  leading toward the intersection of 22nd Avenue and C Street
contributed  to the danger and established the needed  additional
factor.   But the superior court squarely addressed and  rejected
this  contention.  The court noted that the uphill path  did  not
eject  tenants into immediate danger; instead, it deposited  them
on  a public sidewalk.  There they were protected from traffic by
a  guardrail that separated the sidewalk from C Street; moreover,
the  sidewalk and guardrail ran continuously along the west  side
of  the  Loussac  Manor property, so tenants could  readily  gain
access to the sidewalk from other areas of the project  in  fact,
          the corporation had a duty to make C Street accessible to its
tenants.   Given  these circumstances, the superior  court  could
properly  find that the well-worn path did not expose tenants  to
any  increased risk from the dangers of traffic passing by on the
far side of the guardrail.
          Nor does the record reveal any circumstances indicating
that the corporation was in a better position than its tenants to
know  about the open and obvious dangers of C Street traffic,  or
that it had any special ability or right to control or abate  any
hazard at the intersection of 22nd Avenue and C Street.   Because
we  see no basis for recognizing an off-site landlord duty in the
undisputed  circumstances presented here, we affirm the  superior
courts order granting summary judgment to the corporation.
     C.   The Departments Potential Liability
          In  Guerrero I we ruled that the Guerreros  asserted  a
potentially  viable negligence claim based on  their  allegations
that the department breached its duty to protect pedestrians from
unreasonable  danger  posed by traffic  at  the  intersection  of
C  Street  and  22nd Avenue.40  The Guerreros  based  this  claim
largely  on  allegations of negligent design,  construction,  and
maintenance  of  the  A/C traffic couplet and related  pedestrian
systems  in the vicinity of C Street and 22nd Avenue.41  After  a
period  of  discovery on remand after Guerrero I, the  department
moved  for summary judgment on several grounds, arguing  that  it
had  no  duty  to take the specific actions the Guerreros  sought
(actions  including  the  placement of  warning  signs,  signals,
and/or  a  crosswalk or pedestrian overpass at C Street and  22nd
Avenue);   that  liability  for  such  actions  was   barred   by
discretionary  function  immunity in  any  event;  and  that  the
undisputed  facts of the case simply made some of  the  Guerreros
specific  theories of liability irrelevant.  The  superior  court
granted the departments motion summarily, without specifying  the
grounds for its ruling.
          The  Guerreros  challenge the superior  courts  summary
judgment  order, insisting that the record raises triable  issues
of  fact  to  support  their claim against  the  department.   In
response, the department reasserts the arguments it raised below.
When  a  trial court grants summary judgment without stating  its
reasons,  we presume[] that the court ruled in the movants  favor
on  all of the grounds stated.  Accordingly, the summary judgment
should be reversed only if no ground asserted supports the  trial
courts decision.42
          1.   Duty
          The  department asserts initially that our decision  in
Walden  v.  Department of Transportation43 compels the conclusion
that  the department did not owe the Guerreros a duty to  install
warning  signs  or markings on C Street.  Asserting  that  Walden
embodies  the  more  modern duty before  immunity  analysis,  the
department  urges  us  to hold that [t]he  Guerreros  failure  to
recognize  the priority of duty analysis, and to discuss  in  any
manner   the  controlling  statutes  for  signing,  marking   and
signaling, is fatal to their signing and marking claims.  But the
departments duty argument overstates our holding in Walden.
          Here, as in Guerrero I,44 it seems appropriate to start
          by taking stock of our holding in Arctic Tug & Barge, Inc. v.
Raleigh,  Schwarz & Powell.45  In Arctic Tug we  noted  that  our
cases  draw a distinction between questions concerning  precisely
how far a duty extends and questions concerning the dutys general
existence.46   We  noted that a threshold inquiry  into  duty  is
reserved  for the second category of questions  those  concerning
the existence of a general duty.47  We expressly observed that our
law  disfavors  summary adjudication for the  first  category  of
questions  those concerning the precise scope of that duty, or of
whether  particular conduct did or did not breach it.48   And  we
emphasized  that  summary  judgment  is  inappropriate  on  these
narrower duty questions unless the only reasonable inference from
the  undisputed  facts  is that one party owed  another  no  duty
whatsoever  or owed a duty clearly and vastly narrower  in  scope
than  the  one  that the other party asserts in opposing  summary
judgment.49
          Viewed  in  perspective, our decision in Walden  simply
illustrates   Arctic   Tugs   point   concerning   the    limited
circumstances under which narrow duty questions may  properly  be
decided summarily.  In Walden, a car slid off the highway  on  an
icy  curve,  and  one  of its passengers, a child,  was  injured;
Walden,   the  childs  mother,  sued  the  department,   claiming
negligence in failing to sand the road properly and in failing to
post  a  warning sign at the curve.50  She based her warning-sign
claim  entirely on the theory that the Manual on Uniform  Traffic
Control  Devices (Traffic Manual) would have called for a warning
sign to be placed at the curve where the accident occurred.   But
the  theory turned out to be unfounded.  At the summary  judgment
hearing,  the states expert applied the Traffic Manuals technical
standards for placing warning signs on curves and calculated that
they  would  not  have  required or recommended  a  sign  at  the
accident site, but would merely have permitted one.  Waldens  own
expert  then performed the same calculations and agreed with  the
departments  conclusion.  Walden offered no other factual  theory
to  support  her warning-sign negligence claim, so  the  superior
court,   seeing  nothing  left  of  the  claim,  granted  summary
judgment.
          We  affirmed  on  appeal.  As the department  correctly
observes  here,  we ruled on the basis of duty,  concluding  that
Walden had failed to establish that the department had a duty  to
install a warning sign.  But in Walden the states general duty of
due  care  toward  the injured child was not  contested,  and  we
simply  concluded,  as did the trial court, that  Walden  had  no
factual basis to support her warning-sign claim, so that in those
circumstances, the exercise of reasonable care did not  impose  a
duty  on  the state to post a sign at the accident.   In  keeping
with  Arctic Tug, Walden merely recognized that summary  judgment
was  proper  as  to  the specific scope of the duty  because  the
undisputed  facts  conclusively showed that the  plaintiffs  sole
theory  of duty had no factual merit.  Nothing in Walden suggests
that  all  warning-sign  claims  or  signage  claims  pose  broad
questions concerning the existence of a general duty.
          As  we  expressly recognized in Guerrero I,  the  state
does  owe  a  general duty toward pedestrians  who  cross  public
          roadways, and the existence of that duty here does not turn on
the particularized facts of this case.51  The only duty questions
left  open by Guerrero I are fact-specific questions relating  to
scope.   At the summary judgment stage, the vastly narrower  test
set  out  by  Arctic  Tug governs such questions.   Because  this
standard overlaps the demanding summary judgment test we  usually
apply  in  reviewing the sufficiency of evidence to show possible
negligence,52  we  see no need to undertake a  preliminary,  more
modern  analysis  of  the  departments general  duty  toward  the
pedestrians.
          2.   Immunity
          The department next claims that the Guerreros action is
barred  by  sovereign  immunity.  Like  the  federal  government,
Alaska  has  enacted a statutory waiver of sovereign  immunity.53
Although  this  waiver allows the state to  be  sued  for  claims
arising  in tort, it protects the state from suit when the  claim
is  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.54  Not  all  acts  that  involve
discretion  or  judgment are immune, for  almost  any  act,  even
driving  a  nail,  involves some discretion.  55  In  determining
whether an act falls within the discretionary function exception,
we  distinguish between decisions that involve basic planning  or
policy  and  those that are merely operational in the sense  that
they  implement plans or carry out policy.56  The  state  retains
immunity for the former but not for the latter.57  Once the state
has  made  a  planning-level decision to undertake a project,  it
does not have discretion to implement that decision negligently.58
          We   look  to  the  purposes  underlying  discretionary
function immunity when deciding whether a particular decision  is
immune.59    Discretionary  function  immunity  preserve[s]   the
separation  of  powers  inherent to our  form  of  government  by
recognizing  that it is the function of the state,  and  not  the
courts or private citizens, to govern.60  We have indicated  that
on basic matters of policy the courts should refrain from second-
guessing the legislative and executive branches.61  Discretionary
function  immunity  also prevents courts  from  intrud[ing]  into
realms of policy exceeding their institutional competence.62   As
we  have  acknowledged,  [t]he judicial branch  lacks  the  fact-
finding  ability of the legislature and the special expertise  of
the  executive  departments.63  Finally, we have recognized  that
discretionary function immunity protects the publics interest  in
preventing  the enormous and unpredictable liability  that  would
result from judicial reexamination of the decisions of the  other
branches of government.64
          Our cases have recognized that if decisions require the
state   to  balance  the  detailed  and  competing  elements   of
legislative  or  executive  policy, they  nearly  always  deserve
protection  by  discretionary  function  immunity.65   Similarly,
[d]ecisions   about  how  to  allocate  scarce  resources,   will
ordinarily be immune from judicial review.66  On the other  hand,
we  have  ruled  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.67   And  when a statute  or  regulations  are
permissive   simply neutral  a decision is more likely protected,
especially  when  the permissiveness suggests a need  to  balance
policy-related considerations.68
          Although   the  dividing  line  between  planning   and
operational decisions may often be hard to discern,69 we have long
recognized   that,   [u]nder  the  planning/  operational   test,
liability is the rule, immunity the exception. 70  And  when  the
state  acts  without  the  protection of  discretionary  function
immunity,  the  scope  of the states duty should  be  defined  by
ordinary negligence principles.71
          By  .  .  . applying traditional concepts  of
          tort  liability,  the administration  is  not
          being  told that it may not make a particular
          decision  and  act pursuant thereto.   It  is
          merely   being   made  to  pay   the   entire
          foreseeable costs of its activities.[72]
          
          Here,  the  Guerreros argue that once it  undertook  to
build  the  A/C couplet, the department was required to implement
its  decision safely.  So in the Guerreros view, the  departments
design    and   construction   decisions   automatically   became
operational  and cannot be treated as immune policy  or  planning
choices.  We have no quarrel with the Guerreros premise that  the
departments decision to undertake the A/C couplet obliged  it  to
implement  the  project  safely.  But the departments  undeniable
duty  to act safely did not automatically shift all of its  post-
undertaking   decisions   to  the   operational   side   of   the
planning/operational dichotomy.
          In  Japan Air Lines Co. v. State, for instance, we held
that  once  the state made a basic policy decision  to  build  an
airport taxiway for jumbo jets, its ensuing design decisions were
operational  decisions which merely implemented the basic  policy
formulation  to build a [suitable] taxiway.73  Yet in summarizing
the  basis for our decision, we emphasized that it turned on  the
nature   of   the  design  decisions  at  issue,  and   did   not
automatically  flow from the states commitment to  undertake  the
runway project:
               In summary, the state may be held liable
          for  injuries  which  result  from  negligent
          designs.   The issue, as always,  is  whether
          the  design  decision in question involved  a
          basic policy formulation . . . or whether the
          design  decision at issue was merely part  of
          the  implementation or execution of  a  basic
          policy decision, and therefore not immune.[74]
More  recently, in Kiokun v. State, Department of Public  Safety,
we  similarly recognized that even though the states decision  to
initiate  a  search-and-rescue  operation  amounts  to  a  policy
decision  to  take action, not necessarily all[]  decisions  made
after a search and rescue is commenced may be operational.75   In
each  case, we recognized, the determination turns on the  nature
of the specific decision at issue.
          The  Guerreros  nonetheless insist that their  evidence
here   reveals   various   negligent   operational   design   and
construction  decisions concerning the area of  the  A/C  couplet
near  C  Street  and  22nd  Avenue.  For specific  examples,  the
Guerreros  point to the departments decisions not to  install  an
overpass  near the intersection, not to install a crosswalk,  not
to  install  an overhead lighted crosswalk sign, not  to  install
traffic control devices to prohibit pedestrian crossing, and  not
to  install warning signs, such as an advance pedestrian crossing
sign.
          Under our case law, some of these examples unmistakably
belong  in  the category of immune policy and planning decisions.
Our  cases  have previously recognized that decisions  concerning
the   installation  and  location  of  traffic  signals   require
substantial policy considerations and raise significant resource-
allocation  questions.   They therefore qualify as  immune  under
Alaskas   planning-operational  test  of  discretionary  function
immunity.76   We have reached the same conclusion  regarding  the
construction of pedestrian overpasses77 and other highway projects
requiring the state to allocate scarce traffic-safety resources.78
To  the  extent  that  the  Guerreros base  their  claim  on  the
departments negligence in failing to build a pedestrian  overpass
near  C  Street and 22nd Avenue or to install a lighted crosswalk
or  other  comparable traffic control devices, our cases indicate
that  discretionary function immunity would bar the claim  unless
the project at issue  here, the A/C traffic couplet  was governed
by    clearly   established   standards   that   mandated   their
installation.
          In  Jennings  v. State, for example, we considered  the
case  of  a  child  killed by a car while she  walked  across  an
intersection on her way home from school.  The accident site  had
not  been  designated  as  a school zone  and  fell  outside  the
mandatory  school-zone boundaries specified by state regulations.
Given  these  circumstances, we held that the states  failure  to
designate the intersection as a school zone or take other  safety
measures,  such  as building a pedestrian overpass,  had  rightly
been  characterized  [by the superior court]  as  planning  level
decisions,  and thus within the ambit of the statutorily  created
discretionary function exception to the states tort  liability.79
Yet  after  noting that a different safety regulation would  have
applied  to a school zone,80 we went on to observe that we  might
have  reached  the opposite conclusion if the state had  actually
chosen  to include the intersection in a school zone:  [H]ad  the
planning level decision been made to delineate this area a school
zone   and  then  the  state  negligently  signed  the  area   or
negligently constructed a crosswalk, a cause of action might have
arisen   against  the  state  for  these  negligently   performed
operational level acts.81
          In  keeping with this cautionary note from Jennings, we
later held in Japan Air Lines Co. v. State that immunity did  not
apply  to design decisions made after the state decided to  build
an  airport  runway  for wide body jets that  turned  out  to  be
dangerously  narrow.82  Citing Jennings, we  held  that,  because
nationwide standards established the minimum width for runways to
          be used by wide body jets, once the state made the policy
decision  to  build  a  runway for wide body  jets,  its  ensuing
decision  to  design and build the runway merely implemented  its
policy choice and amounted to an operational action.83
          Here,  the  Guerreros have not identified  any  special
standards that became applicable to the intersection of C  Street
and  22nd  Avenue by virtue of the departments decision to  build
the  A/C  couplet.  And the law and regulations  that  ordinarily
guide  the  department  in  deciding  when  to  build  pedestrian
overpasses and install traffic signals do not appear to call  for
additional safety measures of this kind.
          Alaska   law  distinguishes  between  traffic   control
signals  on  the  one  hand, and highway signs   or  marking  and
posting  on the other, addressing these categories in two related
provisions of the Alaska Statutes.84  Both provisions,  in  turn,
recognize and incorporate the nationwide standards set out in the
1988 Traffic Manual  the version of the Manual that was in effect
at  the time of Guerreros accident.85  The two statutes expressly
require that the departments regulations must correlate with and,
as   far   as   possible,   conform  to   the   Traffic   Manuals
recommendations.86  The Traffic Manual itself sets  out  a  broad
array  of  recommendations  for using various  kinds  of  traffic
signals, devices, and signs.
          On  the  subject of traffic signals, the Traffic Manual
lists  a  set  of  four  criteria, or warrants,  to  be  used  in
determining  whether a traffic signal should be  installed  at  a
given location.  Evidence in the record, including evidence  from
the  Guerreros  own expert indicates that the intersection  of  C
Street  and  22nd  Avenue  meets none  of  these  warrants:   The
intersection  does not have significant vehicular cross  traffic;
it  is  not  a designated school crossing; it has not experienced
numerous  accidents; and it does not meet the minimum requirement
for  pedestrian volume.87  Although the Traffic Manual  does  not
categorically  prohibit installing a signal when  none  of  these
warrants is met, it does expressly recommend against taking  such
action,   advising  that  in  such  situations,[t]raffic  control
signals should not be installed.88  Because the department had  a
statutory  duty to conform its practices as far as possible  with
the  Traffic  Manuals  recommendations, it would  need  a  sound,
independent  policy reason before installing a sign  against  the
Traffic Manuals recommendation.  The Guerreros make no showing of
any such reason; and even if they did, the departments failure to
make  a  policy-based  choice to disregard  the  Traffic  Manuals
recommendation would, by definition, amount to an  immune  policy
decision.
          The  departments decision not to place a  crosswalk  at
the  intersection  is  immune  for similar  reasons.   Because  a
crosswalk  would  obviously  affect traffic  movement  and  could
potentially conflict with the departments basic decision  to  use
the  A/C couplet to move traffic quickly into and out of downtown
Anchorage, determining whether to locate a crosswalk at C  Street
and   22nd   Avenue  would  require  consideration  of   policies
indistinguishable from those that would be involved  in  deciding
whether to place a traffic signal at the intersection  a decision
          that our cases characterize as an immune policy choice.89
          Moreover,  the  Traffic  Manual  points  to  the   same
conclusion.  Specifically, in the circumstances at issue here, it
appears to recommend against placing a crosswalk at C Street  and
22nd  Avenue.  According to the Traffic Manual, crosswalks should
be  avoided absent a substantial conflict between pedestrians and
traffic, and their installation across roads like C Street  would
not be justified unless supported by a formal study:
          Crosswalks   should   be   marked   at    all
          intersections  where  there  is   substantial
          conflict   between  vehicle  and   pedestrian
          movements.  .  . . Crosswalk markings  should
          not be used indiscriminately.  An engineering
          study  should  be  required before  they  are
          installed  at  locations  away  from  traffic
          signals or STOP signs.[90]
          
          The  Guerreros  submitted  evidence  of  some  conflict
between  pedestrians  and  traffic.   But  they  have  not  shown
substantial conflict under the Traffic Manuals criteria, and  the
department  submitted  evidence that only  one  reported  injury-
accident   Alexander  Guerreros   had  occurred  since  the   A/C
couplets   completion.   Even  interpreted  in  the  light   most
favorable  to  the  Guerreros, the evidence fails  to  support  a
reasonable   inference  that  the  Traffic  Manual   would   have
recommended a crosswalk at 22nd Avenue and C Street.
          The  Guerreros  fall  even  shorter  of  the  mark   in
suggesting  that the department committed operational  negligence
by  failing to erect a pedestrian overpass.  The foreseeably high
costs  of  building a pedestrian overpass would inevitably  raise
concerns over allocating the departments resources, thus  raising
substantial policy issues.  Moreover, the Guerreros do not  point
out  any provision of law, regulation, or the Traffic Manual that
would mandate or even recommend that an overpass be installed  at
the  intersection of C Street and 22nd Avenue.   And  absent  any
evidence  establishing a history of substantial conflict  between
pedestrian and traffic uses at the intersection there appears  to
be  no  reasonable  basis  to infer that  an  overpass  might  be
required.
          By   contrast,  the  Guerreros  remaining   theory   of
operational  negligence   that  the  department  failed  to  post
adequate  warning  signs  at the intersection   raises  a  closer
question.   As previously noted, both Alaska law and the  Traffic
Manual  draw  distinctions between traffic  signals  and  traffic
signs.   Alaska  Statute  19.10.040  unequivocally  requires  the
department  to  mark  highways  under  its  jurisdiction  and  to
implement a uniform system of marking and posting these highways.
On  three  prior occasions we have unmistakably held  that  these
provisions  give the department an operational duty  to  exercise
due  care in ensuring that roadways have signs and markings  that
are  adequate  to protect the public from reasonably  foreseeable
traffic hazards.
          In  State v. IAnson,91 the department failed to  stripe
and  mark a portion of the highway to establish a no-passing zone
          at a point where the highway joined with an access road.  A
serious  accident occurred when a car attempted to turn onto  the
access road and was hit from behind by a motorist trying to  pass
in  the  highways left lane.  Although the Traffic  Manual  would
have  called for a no-passing zone to be marked at the site,  the
department  argued that deciding whether to create  a  no-passing
zone involved planning and policy, and so was protected under the
discretionary function immunity exception.  But we rejected  this
argument, holding that
          functions of this nature do not involve broad
          basic policy decisions which come within  the
          planning  category  of  decisions  which  are
          expressly entrusted to a coordinate branch of
          government.  . . . [R]esolution of  questions
          such  as  whether or not the  state  properly
          striped or marked a portion of highway as  it
          relates  to the states duty of care to  users
          of the highway presents facts that courts are
          equipped   to   evaluate  within  traditional
          judicial   fact-finding  and  decision-making
          processes.[92]
          
          We  later  reached the same conclusion  in  Johnson  v.
State,93 a case concerning the states failure to post an adequate
warning  sign.   There, a bicyclist was injured  in  an  accident
caused by railroad tracks crossing the road at an unmarked  spur.
The  state  did  not deny its duty to provide and maintain  signs
warning  of  foreseeable hazards.  It nevertheless  argued  that,
because the railroad spur had been included in the plans for  the
road  before  the road was initially built, the decision  not  to
post a warning sign was an original design decision and, as such,
was immune.94  We rejected this argument.  Relying on IAnson,  we
categorically  ruled  in Johnson that the  decision  to  sign  is
operational and hence not immune.95
          And  more recently, in Guerrero I, we observed that our
cases   have  placed certain kinds of government actions  on  the
operational  side  of the operational/planning  balance:  highway
maintenance,  painting lane markings on highways,  [and]  posting
highway signage[.]96
          The  department  nevertheless  insists  that  our  most
recent case law retreats from these precedents and favors a  more
modern  view that would grant immunity to signing decisions.   In
support of this argument, the department relies chiefly on Walden
v. Department of Transportation.97  But as we already observed in
discussing the departments duty argument, the department misreads
Walden.98  There, Walden claimed that the departments duty of due
care  required the department to post a specific warning sign  at
the   accident  site;  to  support  this  claim,  Walden   relied
completely  on the allegation that the Traffic Manual recommended
posting a sign at that location; but as it turned out, the Manual
did  not recommend installing the sign.99  Our decision in Walden
simply recognized that under these facts, the departments general
duty  of  due care did not create an actionable duty  to  install
that particular warning sign.
          The    department   cites   Searles   v.   Agency    of
Transportation100 as additional authority for its  argument  that
signing  decisions  should  be treated  as  immune.   There,  the
Vermont Supreme Court rejected as barred by immunity a negligent-
marking  claim alleging that the state had failed to comply  with
the  Traffic  Manuals  recommendations for marking  a  no-passing
zone.   In  reaching its decision, the court in Searles described
the Traffic Manual as merely a guidebook for the installation  of
signs  and  held  that decisions concerning highway  marking  and
signs  were immune because they involve[] an element of  judgment
or choice.101
          But  in sharp contrast to Searless reliance on the mere
presence  of  an element of judgment or choice, our own  immunity
rulings  have  consistently emphasized that  not  all  acts  that
involve  discretion or judgment are immune, for almost  any  act,
even driving a nail, involves some discretion. 102  Furthermore, in
holding  that failure to properly mark and sign highways  amounts
to  non-immune  operational negligence,  State v.  IAnson  relied
largely  on  Alaskas specific statutory provision  directing  the
department,   as   far   as  possible,  [to]   conform   to   the
recommendations of the [Traffic Manual].103  Finally, the conflict
between Searles and IAnson simply establishes a disagreement; the
mere  fact  that Vermont disagrees with Alaskas view of  immunity
cannot by itself justify overturning our settled precedent.104
          The department does not offer any convincing reason  to
retreat from our holdings in cases like IAnson and Johnson.105  As
we  recognized  in  those cases, installing  appropriate  warning
signs  will generally entail straightforward decisions  involving
implementation.  Given Alaskas statutory directive to follow  the
Traffic Manuals recommendations when reasonably possible,106 there
is  little reason to think that immunity is needed to protect the
department  from  unforeseeable liability.  Furthermore,  as  the
Guerreros  correctly  maintain, installing  signs  is  relatively
inexpensive  and  does not implicate the same resource-allocation
concerns  raised by the high costs of installing traffic signals,
lighted  crosswalks, and pedestrian overpasses.  Finally, warning
signs are less likely than signals and crosswalks to pose serious
risks  of conflicting with previously established policy choices.
We  thus  find  no  sound  basis for  elevating  these  kinds  of
decisions to the level of basic policy and planning decisions.
          3.   Alternative Summary Judgment Theories
               
          Two alternative summary judgment grounds remain for  us
to  consider: negligence and causation.  The Guerreros claim that
the  department  acted  negligently in  failing  to  provide  two
different  kinds  of  warning signs:  signs  warning  pedestrians
against  crossing  C  Street at 22nd  Avenue  and  signs  warning
approaching  motorists  on  C Street that  pedestrians  might  be
crossing  the  roadway  at 22nd Avenue.  They  assert  that  this
negligence caused Alexanders injuries.  As the moving party,  the
department had the entire burden of proving its right to  summary
judgment; unless the department advanced prima facie evidence  of
non-negligence or lack of causation, the Guerreros had no duty to
submit evidence supporting their allegations on these points.107
          On appeal, the department has not expressly argued that
it  established a prima facie case of non-negligence or  lack  of
causation.   But it indirectly raises these issues.  A  claim  of
non-negligence seems implicit in its argument that it had no duty
to  post signs at the accident site; and the department presented
evidence  on  this  point with its motion for  summary  judgment:
state traffic safety expert Ron Martindale submitted an affidavit
suggesting  that  there  was no need for  warning  signs  at  the
intersection.   The department similarly raises an implied  claim
of  lack  of causation; it argues that the Guerreros warning-sign
claims are not factually related to Alexander Guerreros accident,
specifically contending that a No Pedestrian Crossing sign  would
have been useless because Alexander did not know how to read  and
that  an  advance  School Crossing sign would  have  been  futile
because  Alexander  was not a student and the  accident  occurred
outside the usual hours of school.
          For  purposes  of considering these points,  we  assume
that  the department made a prima facie showing of non-negligence
and  lack  of  causation; our inquiry thus centers on determining
whether  the  Guerreros presented any rebuttal  evidence  raising
genuine issues of material fact on negligence and causation.
               a.   Negligence
          The  Guerreros  rely partly on the  Traffic  Manual  as
evidence  supporting  their  claim  that  the  department   acted
negligently  in  failing  to  post  warning  signs.   The  Manual
establishes  three  levels of recommendation for  warning  signs:
shall, should, and may.  It defines them as follows:
          1.    SHALL   a  mandatory condition.   Where
          certain   requirements  in  the   design   or
          application of the device are described  with
          the  shall stipulation, it is mandatory  when
          an    installation   is   made   that   these
          requirements be met.
          2.    SHOULD   an advisory condition.   Where
          the word should is used, it is considered  to
          be   advisable  usage,  recommended  but  not
          mandatory.
          3.     MAY    a   permissive  condition.   No
          requirement  for  design  or  application  is
          intended.[108]
          Although    the    Manual   emphasizes    that    these
recommendations  are not legal requirements,109 they  nonetheless
provide useful and authoritative guidance concerning the level of
care  that  would generally be necessary to meet the  departments
operational duty to post adequate traffic signs.  In a case where
the Traffic Manual merely suggests that a sign may be posted,  it
simply  describes  a permissive condition.110   This  designation
recognizes  that  installing a sign is  generally  an  acceptable
option  under the specified conditions, but it gives no  specific
advice as to what choice the department should actually make.   A
may  recommendation  thus creates no inference  that  failing  to
install a sign amounts to negligence in any particular case.
          By  contrast, the Manual does affirmatively give advice
when  it  says  that  a  sign should be  installed,  specifically
          declaring that, under the stated conditions, installing a sign is
considered to be advisable usage.111  This amounts to a qualified
recommendation: it advises that due care would generally call for
installing  a sign, but also recognizes considerable  leeway  for
individual exceptions.112
          The  Manuals  advice grows even stronger when  it  says
that a sign shall be installed: by defining shall as a  mandatory
condition,  the  Manual  unequivocally  advises  that  when   the
specified conditions are met, due care requires installing a sign
in all but extraordinary cases.113
          As  applied to the two types of warning signs at  issue
here   No  Pedestrian Crossing signs and Advance  Crossing  signs
(that is, signs giving motorists advance warning that pedestrians
may  be  crossing  the  roadway),  the  Traffic  Manual  produces
different  recommendations.  As to no-crossing signs, the  Manual
takes the neutral position that posting may be appropriate:
          Pedestrian   Crossing  signs  may   be   used
          selectively  to  aid  in limiting  pedestrian
          crossing  to  safe  places.  .  .  .  The  No
          Pedestrian  Crossing  sign  may  be  used  to
          prohibit pedestrians from crossing a  roadway
          at   a  point  which  is  considered  to   be
          hazardous, especially in front of a school or
          other public building where a crossing is not
          designated.[114]
          
As  noted above, because this recommendation is merely permissive
it  does  not imply the existence of negligence or non-negligence
in any particular case.
          As  to  Advance  Crossing signs,  the  Manual  takes  a
stronger  position,  recommending  that  Advance  Crossing  signs
should  be used to alert vehicle operators to unexpected  entries
into the roadway by pedestrians, trucks, bicyclists, animals, and
other potential conflicts.115  Because should affirmatively advises
installing  a  sign in specified situations, this  recommendation
alone,  if  shown  to  apply to the disputed intersection,  would
raise a triable question of fact on the issue of negligence.116
          Here,  the  required showing was made.   The  Guerreros
submitted an affidavit signed by their own traffic expert, Edward
M.  Stevens, who concluded that crossing C Street at 22nd  Avenue
on  foot  in  times of heavy traffic would be inherently  unsafe,
especially  for young children.  According to Stevens,  [w]arning
signs,  such as an advance pedestrian crossing sign, a pedestrian
crossing sign, or a no pedestrian crossing sign, were appropriate
with the intersection of 22nd avenue and C street.  Stevens based
his  opinion  on gap and traffic-volume studies of  the  specific
intersection.   These  studies reveal that:  (1)  [t]he  location
nearly   meets   gap  warrant  criteria  for  a   grade-separated
pedestrian over-crossing; and (2) [t]here were several 15  minute
periods  when  no  acceptable  [time  delays  sufficient  for   a
pedestrian  to  cross]  were recorded.  Stevenss  expert  opinion
could  support  a  reasonable inference that  conditions  at  the
intersection  triggered the Manuals recommendation  that  advance
warning   signs   should  be  installed.    Therefore,   Stevenss
          affidavit, coupled with the Manuals recommendation, raises a
triable issue of fact as to the departments negligence in failing
to install an advance-warning sign.
          To  be  sure,  as  already  mentioned,  the  department
offered  opposing  evidence from its own traffic  safety  expert,
Martindale, who emphasized that unnecessary use of warning  signs
can  be  counterproductive because it breeds disrespect  for  all
signs.117  Yet the general proposition that signs should  not  be
overused  fails  to  address  the  specific  conditions  at   the
intersection  of  22nd  Avenue  and  C  Street.   The   Guerreros
presented evidence showing that a heavily used footpath led  from
the Loussac Manor housing complex to C Street and 22nd Avenue and
that  this intersection, in turn, provided the most direct  route
to  a  nearby  elementary school on the far  side  of  C  Street.
Viewed  in  the  light  most favorable  to  the  Guerreros,  this
evidence would tend to refute Martindales implied assertion  that
the  intersection  at  C  Street and  22nd  Avenue  was  no  more
dangerous  than  other  unmarked  intersections  along  the   A/C
couplet, so a genuine dispute of material fact exists as  to  the
need for an advance-warning sign.
          The Guerreros evidence similarly raises a genuine issue
of  fact concerning potential negligence in failing to install  a
No Pedestrian Crossing sign.  Stevenss affidavit could support  a
finding  that  the department violated its duty of  due  care  in
failing  to install a No Pedestrian Crossing sign; this  evidence
thus  independently tends to show negligent conduct, despite  the
Manuals neutral may recommendation as to the general advisability
of posting No Pedestrian Crossing signs.
          The conflicting evidence in the record concerning these
points  thus precludes the department from claiming that  it  was
entitled  to  summary  judgment because  of  unrebutted  evidence
showing  that it acted non-negligently in failing to post warning
signs.
               b.   Causation
          The  record  similarly  contains  conflicting  evidence
precluding  the  department from prevailing  on  the  alternative
theory  that  its failure to post warning signs  could  not  have
caused  Alexanders injury.  As already mentioned, the  department
reasons  that  a  sign prohibiting pedestrians  from  crossing  C
Street would have been futile because Alexander was too young  to
know  how  to  read, and that a sign warning motorists  that  the
intersection  was  a  school crossing  would  have  been  useless
because  Alexander  was not a student and the  accident  occurred
outside the usual hours of school.
          These  arguments mistakenly assume that  the  Guerreros
limited  their  claim to the departments failure  to  post  signs
warning  motorists  to beware of students crossing  C  Street  or
signs  warning in writing that pedestrians should not  cross  the
street.    The  Guerreros  negligent  signing  claim  and   their
supporting  evidence  asserted broader  positions.   Because  the
criteria  specified  in the Traffic Manual for  Advance  Crossing
signs broadly include all potential conflicts between pedestrians
and  motorists118  not just conflicts between student pedestrians
and  motorists  we see no basis for assuming that the  department
          would only have needed to post advance-warning signs that alerted
motorists  to  the danger of students crossing  C  Street  during
normal  school  hours.  Neither the Guerreros  negligent  warning
sign  claim  nor  their experts affidavit was  confined  to  this
narrow theory.
          Furthermore, insofar as the Guerreros asserted that the
department  was  negligent in failing to  install  No  Pedestrian
Crossing  signs, we find little reason to assume that  Alexanders
inability  to  read  would necessarily rule out  causation.   The
sample  No Pedestrian Crossing sign set out in the Traffic Manual
consists  of a non-textual warning: it uses no words  and  simply
depicts the figure of a pedestrian in the middle of a red  circle
with  a  diagonal slash drawn through the figure.119  The  Manual
expressly points out that either this pictorial warning or a word
message  sign may be used when a No Pedestrian Crossing  sign  is
installed.120  Neither Alexanders illiteracy nor his parents prior
warnings would necessarily preclude a finding that he might  have
understood  and  heeded  a simple, clear, and  immediate  picture
warning  like the one in the Manual.  Since the state  failed  to
produce any evidence establishing that a pictorial sign could not
have been posted or that Alexander could not have understood  and
heeded  such a sign, we conclude that the record fails to  reveal
undisputed evidence demonstrating that it was entitled to summary
judgment based on lack of causation.
IV.  CONCLUSION
          Because  the  record establishes that  the  corporation
owed no duty to protect the Guerreros from the dangers of traffic
on the A/C couplet, we AFFIRM the order granting the corporations
motion  for  summary  judgment.  But because  genuine  issues  of
material fact exist as to the Guerreros claim that the department
negligently  breached  an operational duty  to  post  no-crossing
signs and advance-warning signs on C Street, we hold that it  was
error to grant the departments motion for summary judgment on the
negligent  signing claim, REVERSE the order summarily  dismissing
that claim, and REMAND for further proceedings on the claim.   We
AFFIRM  the  summary  dismissal  of  all  other  aspects  of  the
Guerreros  claims against the department, concluding  that  those
claims are barred by discretionary function immunity.
_______________________________
     1     See  Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d  250,
264 (Alaska 2000).

     2    Guerrero is now quadriplegic.

     3    Guerrero I, 6 P.3d at 252-53.

     4    Id. at 255.

     5     Id.  at  257  (quoting Arctic Tug  &  Barge,  Inc.  v.
Raleigh, Schwartz & Powell, 956 P.2d 1199, 1203 (Alaska 1998)).

     6    Id. at 256-57.

     7    Id. at 257.

     8    Id. at 257-58.

     9    Id. at 261-62.

     10    Id. at 260.

     11    Id.

     12    Id. at 263-64.

     13    Pub. Safety Employees Assn, Local 92 v. State, 895 P.2d
980,  984  (Alaska 1995) (quoting Dayhoff v. Temsco  Helicopters,
Inc., 848 P.2d 1367, 1369 (Alaska 1993)).

     14     Charles v. Interior Regl Hous. Auth., 55 P.3d 57,  59
(Alaska 2002).

     15    Snook v. Bowers, 12 P.3d 771, 776 (Alaska 2000).

     16    Charles, 55 P.3d at 59 (quoting Broderick v. Kings Way
Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991)).

     17     Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434,
437  (Alaska 1995) (citing Deal v. Kearney, 851 P.2d  1353,  1361
(Alaska 1993)).

     18    Guerrero I, 6 P.3d at 256.

     19    Id.

     20    780 P.2d 1055 (Ariz. App. 1989).

     21    Id. at 1058.

     22    Id. at 1057.

     23    Id.

     24    Id.

     25    Id. at 1059.

     26    Id. at 1061.

     27    Id. at 1060.

     28    Id. at 1059.

     29    71 Cal. App. 4th 1473 (Cal. App. 1999).

     30    Id. at 1476.

     31    Id.

     32    Id. at 1478.

     33    Id.

     34     Id.  at  1479 (citing Brooks v. Eugene  Burger  Mgmt.
Corp., 215 Cal. App. 3d 1611, 1624 (Cal. App. 1989)).

     35    Id.

     36    Id.

     37    Id.

     38    Id. at 1480.

     39     See  Greenslade v. Mohawk Park, 798 N.E.2d 336 (Mass.
App. 2003) (holding that the owner of a campground had no duty to
warn  guests  of the dangers of a rope swing located on  adjacent
property because the dangers presented by swinging from the  rope
and dropping into a river below were open and obvious); Berman v.
LaRose,  167  N.W.2d 471, 472 (Mich. App. 1969)  ([T]here  is  no
duty,  absent a statute, of an abutting owner as to the condition
of   the  sidewalk  or  public  way,  unless  the  landowner  has
physically intruded upon the area in some manner or has done some
act  which either increased the existent hazard or created a  new
hazard.);  Limberhand v. Big Ditch Co., 706 P.2d 491, 499  (Mont.
1985)  (holding  that [i]f the instrumentality  causing  harm  is
located   adjacent   to   the  landowners   property,   and   the
instrumentality poses a clear and foreseeable danger  to  persons
properly  using  the landowners premises, we  see  no  reason  to
shield  the landowner from liability as a matter of law.  A  duty
to take some reasonable precautions may exist.).

     40    Guerrero I, 6 P.3d at 264.

     41    Id. at 253.

     42    Reed v. Municipality of Anchorage, 741 P.2d 1181, 1184
(Alaska 1987).

     43    27 P.3d 297 (Alaska 2001).

     44    Guerrero I, 6 P.3d at 257.

     45    956 P.2d 1199 (Alaska 1998).

     46    Id. at 1203.

     47    Id.

     48    Id.

     49    Id.

     50    Walden, 27 P.3d at 300.

     51    Guerrero I, 6 P.3d at 255.

     52    See Arctic Tug, 956 P.2d at 1203 (describing questions
concerning  scope  of specific duty as essentially  questions  of
whether  particular  conduct did or did not  breach  [that  duty]
(i.e., constitute negligence)).

     53    AS 09.50.250 provides in relevant part:

          A  person  or corporation having a  contract,
          quasi-contract,  or tort  claim  against  the
          state  may bring an action against the state.
          .  . .  However, an action may not be brought
          if the claim
          
          (1)  is an action for tort, and is based upon
          an  act  or  omission of an employee  of  the
          state,  exercising due care, in the execution
          of  a  statute or regulation, whether or  not
          the statute or regulation is valid; or 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.
          
     54    Id.

     55    State v. Abbott, 498 P.2d 712, 720 (Alaska 1972).

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

     57    Id.

     58    Adams v. State, 555 P.2d 235, 244 (Alaska 1976) ([T]he
basic policy decision to undertake an activity is immune, but the
execution  is not.); see also Japan Air Lines Co. v.  State,  628
P.2d 934, 938 (Alaska 1981) (holding that the decision to build a
runway for wide body jets was a policy decision but that once the
decision  was made, the state was obligated to use  due  care  to
make  certain  that  the taxiway met the standard  of  reasonable
safety  for  its  users); Carlson v. State,  598  P.2d  969,  973
(Alaska  1979)  (holding that the decision  to  maintain  highway
turnouts  was discretionary, but once made the State is  under  a
duty  to act with reasonable care); Abbott, 498 P.2d at 722 (Once
the  basic  decision to maintain the highway in a safe  condition
throughout the winter is reached, the state should not  be  given
discretion to do so negligently.).

     59    Adams, 555 P.2d at 244.

     60    Estate of Arrowwood v. State, 894 P.2d 642, 645 (Alaska
1995) (quoting Japan Air Lines Co., 628 P.2d at 936).

     61     Industrial  Indem. Co. v. State, 669  P.2d  561,  563
(Alaska 1983).

     62    Id.

     63    Id.

     64    Abbott, 498 P.2d at 721-22.

     65    Industrial Indem., 669 P.2d at 563.

     66     Adams v. City of Tenakee Springs, 963 P.2d 1047, 1051
(Alaska 1998); see also Estate of Arrowwood, 894 P.2d at 646  (It
is  well  established  that both legislative  appropriations  and
executive department budget decisions are discretionary functions
immune  from judicial inquiry.); Industrial Indem., 669  P.2d  at
564-65  (Decisions regarding the allocation of  scarce  resources
are   usually  discretionary,  and  thus  immune  from   judicial
inquiry.).

     67    Kiokun v. State, Dept of Pub. Safety, 74 P.3d 209, 218-
19 (Alaska 2003).

     68     Id.  at  216, 219 (finding the decision  of  a  state
trooper  not  to  commence a search-and-rescue  operation  to  be
discretionary  since the regulations were permissive  and  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); State, Dept of Transp.  &
Pub.  Facilities v. Sanders, 944 P.2d 453, 457-58  (Alaska  1997)
(holding that where Department of Transportation regulations  did
not  require department officials to enforce vehicle regulations,
the departments decision not to do so was discretionary).

     69    Abbott, 498 P.2d at 721.

     70    Sanders, 944 P.2d at 457 (quoting Johnson, 636 P.2d at
64).

     71    Abbott, 498 P.2d at 724.

     72    Id. at 726.

     73    Japan Air Lines Co., 628 P.2d at 938.

     74    Id.

     75    Kiokun, 74 P.3d at 218.

     76    Wainscott v. State, 642 P.2d 1355, 1357 (Alaska 1982).

     77    Jennings v. State, 566 P.2d 1304, 1311 (Alaska 1977).

     78    Industrial Indem., 669 P.2d at 564-65.

     79    Jennings, 566 P.2d at 1312.

     80    Id. at 1311 n.28.

     81    Id. at 1312 n.30.

     82    Japan Air Lines Co., 628 P.2d at 938.

     83    Id. at 937 n.2 (distinguishing the holding in Jennings
by  pointing  out  the  cautionary discussion  in  that  opinions
footnote 30).

     84    Specifically, traffic control signals are addressed in
AS 19.10.050, while highway signs are covered by AS 19.10.040.

     85     See  U.S.  Dept. of Transportation,  Federal  Highway
Administration,  Manual on Uniform Traffic Control Devices (1988)
[Traffic Manual].

     86     AS  19.10.040  provides in  relevant  part  that  the
department

          shall  classify, designate, and mark highways
          under  its  jurisdiction and shall provide  a
          uniform  system of marking and posting  these
          highways.  The system of marking and  posting
          must  correlate with and, as far as possible,
          conform to the recommendations of the  Manual
          on  Traffic Control Devices as adopted by the
          American   Association   of   State   Highway
          Officials.
          
          AS   19.10.050  provides  in  relevant  part  that  the
department

          shall  prescribe  types  of  traffic  control
          signals  to  regulate  traffic  on  highways.
          These signals must correlate with and, as far
          as  possible,  conform to the recommendations
          of  the  Manual  on Uniform  Traffic  Control
          Devices    as   adopted   by   the   American
          Association  of State Highway Officials.  The
          department  shall  adopt uniform  regulations
          for  the  placing and installation of traffic
          control signals.
          
     87      The  Traffic  Manual  requires  a  minimum  of   100
pedestrians  per  hour  for each of any  four  hours  to  justify
installing  a  signal.  Traffic Manual, supra note 85,  at  4C-4.
Where  pedestrians  are slower than average,  as  small  children
might  be, the requirement may be reduced by fifty percent.   Id.
at  4C-5.  The report of the Guerreros expert indicates that  the
highest  number of pedestrians crossing C Street during the  peak
traffic hour was 27 and that the average was lower.

     88    Traffic Manual, supra note 85, at 4C-2 (Traffic control
signals should not be installed unless one or more of the  signal
warrants in this Manual are met.).

     89    Wainscott, 642 P.2d at 1357; cf. Industrial Indem., 669
P.2d  at 569 (Matthews, J., dissenting) (discussing rationale  of
Wainscott).

     90    Traffic Manual, supra note 85, at 3B-23.

     91    529 P.2d 188 (Alaska 1974).

     92    Id. at 193-94.

     93    636 P.2d 47 (Alaska 1981).

     94    Id. at 66.

     95    Id.

     96    Guerrero I, 6 P.3d at 261.

     97    27 P.3d 297 (Alaska 2001).

     98    See discussion above, pp. 15-17.

     99    Walden, 27 P.2d at 302.

     100    762 A.2d 812 (Vt. 2000).

     101    Id. at 815.

     102    Abbott, 498 P.2d at 720.

     103    AS 19.10.040.

     104    As we recently reaffirmed in Thomas v. Anchorage Equal
Rights  Commission, 102 P.3d 937, 943 (Alaska 2004),  we  do  not
lightly overrule our precedent:

          [W]e  have  consistently held  that  a  party
          raising  a  claim controlled by  an  existing
          decision  bears a heavy threshold  burden  of
          showing  compelling reasons for reconsidering
          the  prior ruling: We will overrule  a  prior
          decision only when clearly convinced that the
          rule was originally erroneous or is no longer
          sound because of changed conditions, and that
          more  good  than  harm would  result  from  a
          departure from precedent.
          
Id.  (quoting State, Commercial Fisheries Entry Commn v. Carlson,
65 P.3d 851, 859 (Alaska 2003) (internal quotations omitted)).

     105     Johnson, 636 P.2d at 66 ([T]he decision to  sign  is
operational and hence not immune.); State v. IAnson, 529 P.2d 188
(Alaska 1974).

     106    AS 19.10.040.

     107     Barry v. University of Alaska, 85 P.3d 1022, 1025-26
(Alaska 2004) (quoting Braund, Inc. v. White, 486 P.2d 50, 54 n.5
(Alaska 1971)).

     108    Traffic Manual, supra note 85, at 1A-4.

     109    Id.

     110    Id.

     111    Id.

     112     We  reject the departments argument that no  genuine
dispute  concerning operational negligence can be  based  on  the
Traffic  Manuals provisions unless the Manual leaves no room  for
discretion  by unequivocally requiring that a sign be  installed.
The  argument  disregards  AS 19.10.040s  explicit  directive  to
conform  to the Traffic Manuals recommendations; and it  directly
conflicts  with our holding in Johnson v. State, which recognized
that  a viable claim for negligent failure to post a warning sign
could exist even though the warning sign at issue there was  non-
standard,  that  is, not provided for in the then current  Alaska
Traffic Manual[.]  Johnson, 636 P.2d at 66 n.40.  Johnsons ruling
on  this  point  establishes that, although the  Traffic  Manuals
recommendations  can  provide  useful  guidance  in   determining
whether  the  department complied with or violated  its  duty  to
exercise   due   care  in  signing  and  marking  highways,   the
recommendations  will  not  control  that  issue  if  independent
evidence supports a finding that the department acted negligently
despite  the  absence  of an affirmative  recommendation  by  the
Manual.

     113    Traffic Manual, supra note 85, at 1A-4.

     114    Traffic Manual, supra note 85, at 2B-29.

     115    Id. at 2C-16 (emphasis added).

     116    The inference of negligence seems especially apt given
AS 19.10.040s provision requiring the department to comply as far
as possible with the Manuals advice.

     117     We  note that in the superior court, the departments
motion  for  summary  judgment argued that Martindales  affidavit
established  a  lack of any actionable duty, not the  absence  of
negligence:

          Alexanders  parents had  warned  him  of  the
          dangers  of  C  Street.  This five  year  old
          child  could  not read, and thus any  warning
          sign  would presumably be even less effective
          than  his parents instructions. . .  .  [T]he
          State has no duty to warn citizens . .  .  of
          the  obvious dangers of running into  traffic
          on  a  busy street.  Such warnings would have
          to  be  everywhere, and yet they would  still
          fail to reach illiterate five year olds.
          
(Citations  omitted.) This focus on duty seems  misguided,  since
the fact that some youthful pedestrians might not be able to read
a no-crossing sign or might disregard parental warnings would not
relieve  the  state  of  its  duty  to  protect  the  many  other
pedestrians  who presumably would understand and  be  willing  to
heed such a sign.

     118    Traffic Manual, supra note 85, at 2C-16

     119    Id. at 2B-30.

     120    Id. at 2B-29.