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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. B.R. v. State, Dept of Corrections (09/29/2006) sp-6057
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
| B.R., | ) | |
| ) Supreme Court No. S- 11438 Appellant, | ) | |
| ) Superior Court No. 3AN-03-3887 CI | ||
| v. | ) | |
| ) | ||
| STATE OF ALASKA, | ) O P I N I O N | |
| DEPARTMENT OF CORRECTIONS, | ) | |
| and CLARENCE BULLOCK, | ) No. 6057 - September 29, 2006 | |
| ) | ||
| Appellees. | ) | |
| ) | ||
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Morgan
Christen, Judge.
Appearances: James Alan Wendt, Anchorage,
Law Offices of James Alan Wendt, Anchorage,
for Appellant. Venable Vermont, Jr.,
Assistant Attorney General, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
FABE, Justice, with whom CARPENETI, Justice,
joins, concurring in part and dissenting in
part.
I. INTRODUCTION
Clarence Bullock, a physicians assistant employed by
the Alaska Department of Corrections, sexually assaulted a female
inmate, B.R., while treating her at the Anchorage Jail. B.R.
sued the department for damages, alleging that it was liable as
Bullocks employer, and also that it negligently hired and failed
to adequately train its employees. The superior court granted
summary judgment to the department, relying on an Alaska law that
immunizes state agencies from liability for intentional wrongs
such as assaults. We reverse. Although the intentional-tort
immunity law prevents B.R. from recovering against the department
on any theory asserting a breach of the departments duties as
Bullocks employer, the immunity law does not bar a claim against
the department for negligently breaching its duty to protect
inmates from harm, a separate duty that does not arise from the
departments role as Bullocks employer and that the department
could breach regardless of Bullocks employment status. Because
B.R.s complaint appears to advance at least one claim based on
this theory and could be amended to assert others as well, we
hold that dismissal of B.R.s complaint should not have been
ordered.
II. FACTS AND PROCEEDINGS
B.R., a federal prisoner housed at the state jail in
Anchorage, complained about abdominal pain and visited the jails
medical center. Clarence Bullock, the on-duty physicians
assistant, examined B.R. During the examination, Bullock
sexually assaulted B.R. by penetrating her vagina in a manner
that was not medically appropriate. B.R. reported the assault to
state troopers, who opened an investigation.
B.R. experienced further abdominal pain and was sent
back to the jails medical center for additional treatment.
Before going, she evidently asked the department for an escort to
protect her from further mistreatment. Despite this request,
Bullock performed another examination of B.R. and sexually
assaulted her again. Although it is unclear whether anybody
actually accompanied B.R. during her second visit to the medical
center, the record indicates that another person a nurse or
B.R.s escort might have been in or near the examination room
during B.R.s second visit with Bullock.
After B.R. reported the second incident, the state
charged Bullock with sexually assaulting her. He eventually
entered a plea of no contest to one count of attempted sexual
assault in the third degree.
B.R. sued the department, alleging that it was liable
for Bullocks assault under the doctrine of respondeat superior;
she also alleged that the department was liable for her injuries
because it negligently hired Bullock and, despite being aware of
the potential impropriety between male employees and female
inmates, it failed to adequately train employees on this topic.
B.R. further asserted that the department was on notice that the
training of correctional employees who interface with inmates was
necessary and that [t]he failure of the . . . [department] . . .
to adequately train employees on this issue caused the illegal
and inappropriate behavior of Defendant Bullock.
The department moved for summary judgment. Relying on
Alaskas statute barring suits against the state for claims
arising out of assault and other intentional wrongs, the
department argued that it could not be held liable for Bullocks
assault. In advancing this immunity argument, the department
focused on B.R.s claims accusing it of negligently hiring and
training Bullock:
[A] plaintiff cannot escape the bar to claims
arising out of assault by pleading claims
sounding in negligence, such as negligent
hiring or negligent training. . . . Failure
to bar these derivative negligence claims
would eviscerate the purpose of the assault
exception to the States waiver of sovereign
immunity. In every case arising out of an
assault by a State employee the plaintiff
will seek to circumvent the exclusion of
assault claims by alleging that the State
negligently failed to discover the employees
violent or deviant propensities during the
hiring process . . . or that the State
negligently failed to train the employee to
suppress the violent or deviant propensities.
Although the language of B.R.s complaint alleged a
general failure to adequately train and supervise employees on
this topic an allegation broad enough to encompass employees
other than Bullock the departments summary judgment memorandum
failed to recognize or discuss this potentially broader aspect of
B.R.s claim.
The superior court granted the departments motion for
summary judgment and dismissed B.R.s complaint on the ground that
it was barred by Alaskas intentional-tort immunity statute.
B.R. appeals.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo.1
Summary judgment is appropriate when there are no genuine issues
of material fact and the moving party is entitled to judgment as
a matter of law.2 The moving party has the entire burden of
proving that it is entitled to summary judgment.3 That is,
unless the moving party points to undisputed facts or admissible
evidence establishing a prima facie case entitling it to summary
judgment as a matter of law, the opposing party has no obligation
to produce evidence supporting its own position.4
IV. DISCUSSION
B.R.s complaint advanced claims against the department
under several alternative theories: respondeat superior,
negligent hire, and negligent failure to train employees. The
question here is whether these claims are all barred as a matter
of law by Alaskas intentional-tort immunity statute, AS
09.50.250(3). Under this law, the state is immune from any tort
claim that arises out of assault, battery, false imprisonment,
false arrest, malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract
rights.
The Alaska immunity statutes language closely tracks
that of 28 U.S.C. 2680(h), a provision of the Federal Tort
Claims Act that grants federal agencies sovereign immunity from
intentional torts.5 We have often observed that federal
decisions construing the federal act are persuasive authority in
construing Alaskas immunity statute.6
The most recent United States Supreme Court decision
construing the federal intentional-tort immunity provision is
Sheridan v. United States.7 In Sheridan, an obviously
intoxicated off-duty serviceman fired a gun into a car as it
passed by on the grounds of a naval base, injuring the cars
occupants.8 The injured plaintiffs sued the government. Relying
on certain regulations that applied on the base, they argued that
the government had undertaken a good Samaritan duty that required
government personnel to exercise reasonable care to protect them
from being assaulted. The plaintiffs contended that the
government breached this duty because several federal employees
had seen the assailant wandering around with a loaded weapon
shortly before the shooting but had failed to restrain him or
alert the appropriate authorities.9
The government moved to dismiss the complaint under
2680(h), asserting that the intentional-tort immunity provision
barred the plaintiffs action because their complaint asserted a
claim arising out of an assault.10
The Sheridan Court rejected this argument. As an
initial matter, the Court pointed out, 2680(h) did not directly
apply to the assailants conduct: the Federal Tort Claims Act
attaches only to injuries caused by government employees acting
within the scope of government employment; but the assailant in
Sheridan was off duty, acting outside the scope of his
employment, when he committed the assault.11 In any event, the
Court observed, the plaintiffs theory of liability did not rely
on the assailants conduct. Instead, the theory asserted that the
government breached its good Samaritan duty because other
government employees on base neglected to take reasonable steps
to prevent the assault by failing to report or restrain the
assailant before the assault occurred.12
In recognizing that 2680(h) did not bar the plaintiffs
from pursuing their claim under this theory, the Sheridan Court
reasoned that Congress could not rationally have intended to make
the governments liability for breaching its good Samaritan duty
hinge on the fortuitous circumstance of the assailants
employment: [I]n a case in which the employment status of the
assailant has nothing to do with the basis for imposing liability
on the Government, it would seem perverse to exonerate the
Government because of the happenstance that the [assailant] was
on a federal payroll.13
Since the assailant in Sheridan did not commit the
assault while he was on duty, the majority opinion found no
reason to discuss whether the government could have been held
liable if an on-duty government employee had committed the
assault. But Justice Kennedys concurring opinion in Sheridan
directly addressed the point. Because B.R.s case squarely raises
this issue, Justice Kennedys concurrence provides helpful
guidance here.
Justice Kennedy began his concurrence by accepting the
Sheridan majoritys premise that injuries can arise from multiple
causes and that, in immunizing the government from intentional
torts, Congress did not intend the intentional-tort immunity
statute to shield the government in a multiple-cause case from
all claims alleging breaches of separate duties, such as a duty
to protect others from a foreseeable assault.14 To decide when
claims of this kind should be allowed, Justice Kennedy reasoned,
the crucial inquiry should be whether the claim asserts the
breach of a separate duty independent from the employment
relation15 in other words, a duty unrelated to the duties the
government acquires as the employer of the primary assailant.16
Without this limitation on the scope of a permissible independent
duty, Justice Kennedy observed, litigants could avoid the
substance of the [intentional-tort] exception because it is
likely that many, if not all, intentional torts of Government
employees plausibly could be ascribed to the negligence of the
tortfeasors supervisors. To allow such claims would frustrate
the purposes of the exception.17
In Justice Kennedys view, then, a viable claim against
the government for breaching an independent duty to protect the
claimant from an assault by a government employee has two
prerequisites: the claim must assert a theory of liability based
on a government duty that (1) is distinct from the duty breached
in committing the intentional tort and (2) would have existed and
could have been breached even if the assailant had not been a
government employee.18
The point addressed by Justice Kennedys concurring
opinion remained unresolved in Alaska until we issued our recent
decision in Kinegak v. State.19 In Kinegak, we adopted Justice
Kennedys Sheridan concurrence as the correct approach under
Alaskas intentional-tort immunity provision, AS 09.50.250(3).20
We observed that in the seventeen years since Sheridan was
decided, Justice Kennedys concurrence had been widely followed:
Most federal circuit courts that have addressed the question have
said that the government is liable for harm caused by intentional
torts, provided the government breached some independent duty
that has a basis other than negligent supervision, training, or
hiring of government employees.21 Citing various federal cases
supporting this proposition,22 we concluded that the superior
court had properly dismissed Kinegaks false-imprisonment claim,
which alleged that the Department of Corrections had negligently
supervised the employees who miscalculated Kinegaks sentence,
thereby causing him to be held in jail beyond the end of his
term.23
As applied to the facts alleged in B.R.s complaint,
Justice Kennedys approach precludes B.R.s claims to the extent
that they merely assert breaches of the departments duty to
exercise due care in hiring, training, and supervising Bullock as
its employee. Even though these claims depict the wrongful
conduct as the departments negligent hiring or negligent training
instead of as Bullocks intentional acts of assault, they appear
to depend only on Bullocks employment status, and could not
support a finding of breach unless Bullock acted as a state
employee.
But the same approach leads to a different conclusion
to the extent that B.R.s complaint potentially encompasses
theories of liability that are not grounded on the departments
employment relation with Bullock, that is, theories based on the
breach of a duty to supervise an employee other than Bullock or
based on the breach of some independent protective duty to
prevent Bullocks assault.
Here, as we have already noted, B.R.s complaint is
broadly phrased to include a claim that the department
negligently failed to train employees, an allegation broad enough
to cover employees other than Bullock. In connection with this
claim, B.R. alleges that she ask[ed] for a female escort and one
was provided. However, when B.R. went to receive medical
attention the escort remained outside the examination room.
Furthermore, a report prepared by the Alaska State Troopers
suggests that a nurse may have been present in the examination
room during the second assault. If the department negligently
failed to train or supervise these employees, then its negligence
would have breached a supervisory duty that was separate from any
duty stemming from its employment of Bullock, so the breach would
not have depended on Bullocks status as a department employee.
Moreover, even though the circumstances described in
B.R.s complaint undeniably focus on the departments duties as
Bullocks employer, they necessarily implicate a separate
protective duty as well. We have previously recognized that the
department stands in a special relationship with inmates and that
this relationship gives rise to a special protective duty: the
duty to exercise reasonable care for the protection of [the
prisoners] life and health.24 Apart from any supervisory duties
that might have arisen from its employment relationship with
Bullock, then, the department owed a separate duty to take
reasonable precautions to protect B.R. from foreseeable
misconduct that Bullock might commit during B.R.s examinations.
This protective duty qualifies as independent in both
senses required under Kinegaks and Justice Kennedys approach: the
duty is separate from any duty breached in connection with
Bullocks conduct, and it is independent because it has no
relation to Bullocks employment status in other words,
regardless of whether Bullock was acting as a department
employee, an independent contractor, a privately retained
physicians aid, or a volunteer health care provider when he
examined B.R. at the jail, the department would have had a duty
to protect her and could have breached this duty by negligently
exposing her to an unreasonable risk of harm from Bullock.
Bembenista v. United States,25 one of the federal cases
we cited with approval in Kinegak,26 illustrates this conclusion.
In Bembenista, a medical technician who worked on the staff of a
military hospital (the Walter Reed Army Medical Center, or WRAMC)
repeatedly molested an incompetent hospital patient, Mrs.
Bembenista; her husband sued the government, claiming that it
negligently hired and supervised the technician and, more
generally, that it negligently failed to protect Mrs. Bembenista,
its patient. The D.C. Circuit Court of Appeals reversed a trial
court order dismissing the case as barred by intentional-tort
immunity. Quoting Justice Kennedys Sheridan concurrence, the
court of appeals recognized that the hospital owed an independent
protective duty to patients and could be held directly liable for
breaching this duty if it negligently failed to protect Mrs.
Bembenista:
WRAMCs duty of protective care arose out of
its special relationship with Mrs.
Bembenista; [t]his theory of liability does
not depend on the employment status of the
intentional tortfeasor. 108 S. Ct. at 2458
(Kennedy, J., concurring in the judgment).
WRAMC would be liable even if Mrs. Bembenista
had been assaulted by a private person
unconnected with the government.[27]
Because the court concluded in Bembenista that immunity
did not bar the plaintiffs claim for breach of WRAMCs independent
protective duty to its patients, the court found no need to reach
the more troublesome question whether the government would be
liable for the mere negligent retention and supervision of a
medical technician known to be psychologically disturbed.28 By
avoiding this troublesome issue, the court implicitly recognized
that, in situations like the one presented there and the one
before us now, a claim for negligent supervision can properly be
based on the governments breach of a special protective duty,
even though a functionally equivalent negligent-supervision claim
might be barred if it were merely grounded on the governments
general duty to supervise employees.29
Here, the departments brief on appeal expressly
acknowledges that B.R.s independent duty claim might be based on
the states failure to protect her after it had notice of the
first assault. The department nevertheless argues that the
record contains no facts to support B.R.s independent-duty
theory. But this argument overlooks the scope of the states
burden in moving for summary judgment.
To prevail completely on summary judgment, the
department would have had to meet its entire burden of
establishing a prima facie case by pointing out uncontested facts
or admissible evidence negating the possibility that, given the
facts stated in the complaint, independent-duty liability could
have been found under the Kinegak test.30 Here, the department
failed to meet this burden. Indeed, in its pleadings and
arguments before the superior court, the department failed even
to acknowledge the possibility of an independent-duty theory,
except a possible theory based on the departments duty as an
employer to use due care in hiring and training Bullock.31
Admittedly, the departments failure to recognize and
address the possibility of such a theory in the superior court
may well reflect the complaints inattention to the independent-
duty requirement. Yet as we have already pointed out above, even
though B.R.s complaint largely focused on theories that seem
narrowly phrased to assert claims grounded only on the states
employment relationship with Bullock for example, claims that
the state negligently violated its duty of due care in hiring and
training Bullock as an employee the complaint nonetheless
describes at least one theory grounded on the departments failure
to supervise other employees. As to this claim at least, the
summary judgment should not have been granted. It follows that
complete dismissal of B.R.s complaint was improper.
Moreover, we think that it would be unfair to attribute
too much significance to the complaints narrow focus on theories
involving the departments employment relationship with Bullock.
As we have seen, the approach we adopted in Kinegak clarified
Alaska law by recognizing for the first time that a claim against
the state for negligently supervising an intentional wrongdoer
can survive only if it alleges liability based on a separate duty
independent from the primary wrongdoers status as a state
employee. Here, the complaints failure to include claims
explicitly based on the broader theory that the state breached
its independent protective duty to B.R. may well be explained by
the uncertain state of Alaska law before we decided Kinegak:
B.R.s appeal had already been submitted for decision when our
opinion in Kinegak was published.
As illustrated in Bembenista, the problems created by
the current complaints narrowly aimed phrasing might have been
resolved by reframing its claims to allege breaches of the
departments independent protective duty. On remand, then, given
the recency of our decision in Kinegak, B.R. should be allowed
the opportunity to amend her complaint.
V. CONCLUSION
Because the departments summary judgment motion failed
to address a potentially viable claim alleging liability based on
the departments negligent failure to train employees other than
Bullock, and because, in light of our recent decision in Kinegak,
B.R. may well be able to frame additional viable theories based
on the departments independent protective duty to inmates, we
REVERSE the superior courts summary judgment order dismissing
B.R.s claims and REMAND for further proceedings.
FABE, Justice, with whom CARPENETI, Justice, joins,
concurring in part and dissenting in part.
I agree with the courts conclusion that B.R. should be
permitted to bring a claim based on the States breach of its
special protective duty to inmates, and that a claim sounding in
this duty is distinguishable from the one rejected in Kinegak v.
State, Department of Corrections.1 I write separately, however,
to point out two additional reasons for allowing B.R.s negligent
hiring and supervision claim to proceed. First, unlike the
conduct at issue in Kinegak, the conduct at issue here is
unrelated to the core functions of DOC. A second basis for
distinguishing this case is that Kinegak should be interpreted as
narrowly as possible on public policy grounds.
I. Relation Between the Conduct at Issue and Core Governmental
Functions
One of the primary goals of sovereign immunity is to
prevent litigation from impeding the essential functions of state
government.2 For example, arrest decisions are generally given a
wide degree of latitude because permitting plaintiffs to sue the
government for good-faith arrest decisions that later prove to be
incorrect could endanger public safety by deterring police from
making proper arrests.
The conduct at issue in Kinegak keeping records of
prisoners release dates was clearly an essential function of
DOC. But no such argument can be made for the conduct at issue
here. Although providing medical care to inmates is indeed an
essential function, the specific conduct at issue here is DOCs
unnecessary placement of B.R. in a situation in which she was
likely to be sexually assaulted, even after she had reported a
previous assault by the same perpetrator.3 Knowingly exposing an
inmate to the likelihood of sexual assault is not required by the
States duty to provide medical care to inmates, and is not
related to any other legitimate function of DOC. Moreover, it
runs contrary to the requirement that DOC administer prisons in a
fair and humane manner.4 Lawsuits that tend to interfere with or
prevent such conduct simply do not pose the same sort of threat
to DOCs continued performance of its duties as lawsuits that
potentially impair its core functions. Therefore, the policy
justification for granting sovereign immunity in Kinegak, to the
extent that there was one, is absent here.
II. Kinegak Should Be Interpreted as Narrowly as Possible.
A second reason for making a distinction is to limit
the harmful effects of the courts decision in Kinegak. By
adopting an expansive reading of this states sovereign immunity
statute, Kinegak eliminates a major incentive for the government
to perform essential functions, such as record keeping,
correctly.5 As noted in the dissent, such a ruling invites more
misconduct, and its most likely practical consequence . . . is
. . . an increase in negligence on the part of the DOC.6 The
most effective way to avoid these consequences is to overturn
Kinegak.7 If the court does not overturn Kinegak, however, it
should at least minimize the harm done by this unfortunate
precedent by interpreting it as narrowly as possible.
III. Conclusion
For the reasons stated above, as well as those given by
the court, I would permit B.R.s negligent hiring and supervision
claim to proceed.
_______________________________
1 Mechanical Contractors of Alaska, Inc. v. State, Dept
of Pub. Safety, 91 P.3d 240, 244 (Alaska 2004).
2 Alakayak v. British Columbia Packers, Ltd., 48 P.3d
432, 447 (Alaska 2002).
3 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)).
4 Cf. Barry, 85 P.3d at 1026.
5 28 U.S.C. 2680(h) provides that the federal
governments waiver of immunity shall not apply to [a]ny claim
arising out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.
6 See, e.g., P.G. & R.G. v. State, Dept of Health & Human
Servs., 4 P.3d 326, 335 (Alaska 2000).
7 487 U.S. 392 (1988).
8 Id. at 393.
9 Id. at 394-95.
10 Id.
11 Id. at 400-01 (relying on 28 U.S.C. 1346(b), which is
incorporated by reference in 28 U.S.C. 2680(h)). Although AS
09.50.250 is nearly identical to the Federal Tort Claims Act, the
scope of employment language in 1346(b) does not appear in AS
09.50.250.
12 Id. at 401-02.
13 Id. at 402.
14 Id. at 406 (Kennedy, J., concurring).
15 Id. at 406 (emphasis added).
16 Id.
17 Id. at 407.
18 Justice Kennedys concurrence repeatedly emphasized the
importance of the second prong of this requirement, describing it
in slightly different ways: [A] court must ascertain whether the
alleged negligence was . . . the breach of some separate duty
independent from the employment relation. Id. at 406. On this
theory [of the good Samaritan duty], the Governments negligence
is independent of its employment relation with [the off-duty
serviceman]. Id. at 407. This theory of liability does not
depend on the employment status of the intentional tortfeasor.
Id.
19 129 P.3d 887 (Alaska 2006).
20 Id. at 891-93.
21 Id. at 891 (footnote omitted).
22 Id. at 891 n.30 (citing cases).
23 Id. at 892.
24 State, Dept of Corr. v. Johnson, 2 P.3d 56, 59-60
(Alaska 2000).
25 866 F.2d 493 (D.C. Cir. 1989).
26 Kinegak, 129 P.3d at 891 n.30 (approvingly citing
Bembenista and other cases as following Justice Kennedys
concurring approach in Sheridan).
27 Bembenista, 866 F.2d at 498.
28 Id.
29 Our recent rejection of a negligent-supervision claim
on immunity grounds in Kinegak does not conflict with the
Bembenista courts analysis of this point. In Kinegak an inmate
who was mistakenly held in jail for several days after he
completed his sentence sued the Department of Corrections for
false imprisonment, alleging that the department violated its
duty to train and supervise employees who performed the
departments record-keeping functions. As we emphasized in
Kinegak, this negligent-supervision theory was not grounded on a
breach that could be considered independent under the standard
set out in Justice Kennedys Sheridan concurrence, since Kinegaks
theory relied on a violation of the departments supervisory duty
as an employer. See Kinegak, 129 P.3d at 892. More
fundamentally, under the facts presented in Kinegak, both duties
at issue there the departments duty to keep accurate records of
Kinegaks sentence and its duty to train and supervise the
employees who kept those records were part of the conduct
comprising the intentional tort: the departments failure to
release Kinegak when his sentence was fully served. Given these
circumstances, we recognized that keeping accurate records became
an inseparable component of Kinegaks false imprisonment, as
opposed to being an independent harm committed by negligently
failing to prevent a distinct intentional harm. Id.
Notably, almost all federal cases that have declined to
allow liability based on a negligent-supervision theory have
simply involved a situation in which no independent duty was
claimed or established. See, e.g., Leleux v. United States, 178
F.3d 750, 758 (5th Cir. 1999) (refusing to allow recruit to sue
the Navy for negligence in allowing recruiting officer to seduce
her and infect her with herpes, emphasizing that recruit does not
allege that the Government had any duty to protect her
independent of its employment relationship with [the recruiting
officer]), cited in Kinegak, 129 P.3d at 891 n.30 (citing
Bembenista and other cases that follow Justice Kennedys
concurring approach in Sheridan).
30 Cf. Barry, 85 P.3d at 1026.
31 Although the department asserted at oral argument that
the independent-duty claim has effectively been waived because
B.R. did not explicitly argue it before the superior court, this
argument is unpersuasive. In ruling on the departments summary
judgment motion, the superior court had an obligation to examine
the record independently in order to determine whether the
department had presented a prima facie case supporting its right
to complete summary judgment. B.R.s failure to emphasize her
independent-duty claim did not relieve the court of this
obligation. Cf. American Restaurant Group v. Clark, 889 P.2d
595, 598 (Alaska 1995) ([E]ven if [the non-movant] failed to
bring the relevant . . . testimony . . . to the superior courts
particular attention, it did not relieve the superior court of
its obligation to examine the record before determining that no
genuine issue of material fact existed.).
1 129 P.3d 887 (Alaska 2006) (holding that AS
09.50.250(3) barred an action against DOC for negligent record
keeping that resulted in the plaintiffs imprisonment for a week
beyond the end of his sentence).
2 See Lauren Villa, Public Service, Private Entity:
Should the Nature of the Service or Entity Be Controlling on
Issues of Sovereign Immunity?, 78 St. Johns L. Rev. 1257, 1257-58
(2004) (arguing that the principal justification for sovereign
immunity is that the publics interest in the continued delivery
of essential services far outweighs their interest in
redressibility, and advocating the expansion of sovereign
immunity to certain private entities); but see Barker v. City of
Santa Fe, 136 P.2d 480, 482 (N.M. 1943) (quoting 75 A.L.R. 1196):
It is almost incredible that in this modern
age . . . and in a republic, the medieval
absolutism supposed to be implicit in the
maxim, the King can do no wrong, should
exempt the various branches of the government
from liability for their torts, and that the
entire burden of damage resulting from the
wrongful acts of the government should be
imposed upon the single individual who
suffers the injury, rather than distributed
among the entire community constituting the
government, where it could be borne without
hardship upon any individual, and where it
justly belongs.
3 DOC could have easily performed this function without
exposing B.R. to sexual assault by entrusting her treatment to a
different medical technician.
4 Cf. McGinnis v. Stevens, 543 P.2d 1221, 1237 (Alaska
1975) (As an extension of the state, the [DOC] must administer
Alaskas prisons in a manner which is neither arbitrary nor
vindictive.); Cheryl Bell et al., Rape and Sexual Misconduct in
the Prison System: Analyzing Americas Most Open Secret, 18 Yale
L. & Poly Rev. 195, 195-96 (1999) (noting that [i]n many American
prisons, rape and sexual misconduct are often ignored by prison
administrators, and that [t]he scars such trauma leaves behind
dramatically alter the lives of scores of women and men, and,
once outside prison, they can also negatively affect the public
at-large).
5 See Kinegak, 129 P.3d at 898 (Fabe, J., dissenting);
cf. Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L.
Rev. 1201, 1222-24 (2001) (noting that [t]here unquestionably is
a cost to sovereign immunity in terms of accountability:
Government can violate the law and avoid liability and expressing
the hope that someday the Supreme Court will change course and
abolish the doctrine of sovereign immunity from American law);
Lauren K. Robel, Sovereignty and Democracy: The States
Obligations to Their Citizens Under Federal Statutory Law, 78
Ind. L.J. 543, 553-55 (2003) (maintaining that sovereign immunity
is both anachronistic and hostile to traditional concepts of
democratic government, and observing that states have largely
disavowed the idea[] . . . that there is something unseemly about
citizens requiring states to respond through lawsuits for the
injuries they inflict).
6 Kinegak, 129 P.3d at 898 (Fabe, J., dissenting).
7 This courts rule of stare decisis requires adherence to
precedent unless the court is clearly convinced that (1) a
decision is no longer sound, and (2) more good than harm would
result from overruling it. State v. Fremgen, 914 P.2d 1244, 1245-
46 (Alaska 1996). For the reasons stated in the dissent, I
believe that Kinegak easily meets this test. Kinegak, 129 P.3d
at 894-98 (Fabe, J., dissenting).
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