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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

B.R. v. State, Dept of Corrections (09/29/2006) sp-6057, 144 P3d 431

     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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