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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Corrections v. Cowles (12/15/2006) sp-6082

State, Dept. of Corrections v. Cowles (12/15/2006) sp-6082, 151 P3d 353

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
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DEPARTMENT OF ) Supreme Court No. S- 11352
) Superior Court No.
Petitioner, ) 3AN-01-09140 CI
v. ) O P I N I O N
EBONY COWLES, ) No. 6082 - December 15, 2006
Respondent. )

          Petition  for Review from the Superior  Court
          of   the  State  of  Alaska,  Third  Judicial
          District, Anchorage, Sen K. Tan, Judge.

          Appearances: Venable Vermont, Jr.,  Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Petitioner.  Charles W. Ray, Jr., Law Offices
          of  Charles  W. Ray, Jr., P.C., and  Paul  W.
          Whelan   and   Kevin  Coluccio,   Stritmatter
          Kessler   Whelan  Withey  Coluccio,  Seattle,
          Washington, for Respondent.

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

          FABE, Justice.
          BRYNER,  Chief Justice, with whom  CARPENETI,
          Justice, joins except with regard to the last
          paragraph, concurring.
          MATTHEWS, Justice, dissenting in part.
          A  parolee murdered his former girlfriend and then shot
himself.  The issue before us is whether the State of Alaska  may
be  held liable in tort for a crime committed by a parolee  under
its  supervision.  The State urges us to overrule our holding  in
Division of Corrections v. Neakok that the State owes a  duty  of
care in supervising its parolees.1   The State also contends that
it  is immune from suit and that it is entitled to judgment as  a
matter of law on the issue of causation.  Because we find that at
least  some of the States alleged acts of negligence are shielded
by discretionary function immunity, we vacate the superior courts
order  denying  the  States  motion  for  summary  judgment.   We
therefore  overrule our holding in Neakok that the  selection  of
conditions  of parole are operational activities not entitled  to
immunity.2   While we decline to overrule our holding  in  Neakok
that  the  State owes a duty of care to the victims  of  parolees
under  its  supervision, we emphasize that this  duty  should  be
narrowly construed.  Based on the facts of this case, we conclude
that  the  trial  court properly denied summary judgment  on  the
issue  of duty.  We remand for a ruling on causation in light  of
the superior courts discretionary function immunity rulings.
          In  September 1991 Calvin McGrew and four  others  were
driving  a jeep that caught fire near the home of Jacqueline  and
Donald Boschert on the Parks Highway.3 The Boscherts helped  them
put out the fire and allowed the five people into their house  to
use  the phone.  McGrew grabbed Mrs. Boschert and put a knife  to
her throat.  The group tied the Boscherts up, stole some personal
items,  and  escaped in the Boscherts Cadillac  and  Ford  pickup
          McGrew  pleaded  no  contest to robbery  in  the  first
degree  and  other charges. He received a presumptive  seven-year
sentence  for  the  robbery  charge.4  McGrew  was  released   on
mandatory parole on November 23, 1996 subject to thirteen general
parole conditions and fourteen supplemental  conditions.
          When  McGrew was released from prison, Patricia Beckner
was  assigned  to serve as his parole officer.   As  required  by
Department of Corrections (DOC) policy, Beckner filled out a risk
assessment form to determine McGrews supervision level.5  Beckner
failed  to  include  McGrews prior juvenile  convictions  in  the
calculation  of  the  risk score.  She also incorrectly  assigned
McGrew  a  medium supervision level even though  the  risk  score
total  on  the form corresponded to a maximum supervision  level.
Under  DOC policy, medium supervision requires parolees  to  have
face-to-face  contact with the parole officer  at  least  once  a
month,  while maximum supervision requires twice monthly face-to-
face contact and a field visit at least once every four months.6
          DOC  policy also required that a risk  reassessment  be
completed  every six months.7  Like her initial risk  assessment,
Beckners  reassessments were incorrectly  scored.   Beckner  also
filled  out a risk reassessment in August 1998 even though McGrew
had  absconded  from  parole at that time and  she  had  not  had
contact  with him for several months.  At the time of the murder,
Beckner had not completed a reassessment form for McGrew in  more
than ten months.
          Between  his release from prison in November  1996  and
March  1998,  McGrew  appears to have complied  with  his  parole
conditions  with  the  exception of a  few  missed  appointments,
positive  urine tests for marijuana, and no shows for  urinalysis
appointments.  During this time McGrew lived with his  girlfriend
Shila Davis or her parents.
          McGrew  did not appear for urine testing in March  1998
and  failed to report to Beckner in April and June 1998.  Beckner
learned  from  McGrews employer that he had been  fired  for  not
showing  up.  On July 17, 1998,  Beckner filed a parole violation
report.   A  parole board member issued a parole  arrest  warrant
four  days later.  When McGrew had not been arrested by  November
1998, Beckner put his file in abscond status.
          McGrew  was  arrested on May 13, 1999.  A parole  board
member  conducted  a  preliminary hearing  on  May  21,  1999  to
determine  if  he should remain in custody until his  full  board
revocation  hearing.   At the hearing, McGrew  admitted  to  five
parole violations and presented a release plan proposing that  he
continue to work, live with Shila Davis, and support his  family.
Beckner  submitted  a  letter from Davis asking  that  McGrew  be
released.   The  letter  stated that  she  and  McGrew  had  been
together  for  seven  years,  that they  had  recently  had  twin
daughters,  and that she needed him at home to help  raise  their
children.   The parole board member released McGrew  on  May  21,
1999  with  the  additional condition that he  present  proof  of
employment to Beckner upon request.
          On  June  8, 1999, Davis filed a petition in the  trial
court requesting a protective order.  She alleged that McGrew had
abused her and requested that he be barred from contacting her or
coming  to her home.  On June 13, 1999, Davis called 911 alleging
McGrew  had  hit  her.   On July 23, 1999,  Davis  filed  another
petition  for a protective order, and the district court  granted
an  ex  parte protective order.  The next day, on July 24,  1999,
McGrew shot Davis and himself.  One or both of their bodies  fell
on  their three-month-old twins.  One of the twins survived,  but
the other suffocated.
          At  the time of the murder, parole officer Beckner  was
unaware  that Davis had filed domestic violence petitions against
McGrew  or that the couple had separated. Beckner stated  in  her
affidavit filed in the resulting tort case that while supervising
McGrew  between his release after the preliminary hearing in  May
and the murder in July, she attached a great deal of significance
to  what appeared to be a long-term stable relationship, and  the
recent  arrival of twins.  Beckner further stated:  I  felt  that
Calvins  relationship  with Shila, and his continued  employment,
were  good  indicators  that  he  might  succeed  on  parole  and
afterwards.  McGrew had reported to Beckner as scheduled  on  May
24  and  June  21.   He did not tell Beckner about  the  domestic
violence problems.  But on his June 21 monthly report form he did
note that he had had contact with the police, stating [t]hey came
to  my house to arrest me.  In her affidavit, Beckner stated that
she  had  no current recollection of this entry or any discussion
about it with Calvin, but [she] would have asked him about it and
.  . . feel[s] sure that [she] did.  She stated that she believed
that  the  visit from the police was related to ongoing confusion
between McGrew and Darryl Poindexter8 and did not indicate to her
that  McGrew  had  committed  new crimes  or  significant  parole
violations.    In  her  deposition,  Beckner  stated   that   she
remembered  McGrew submitting this report and that  she  believed
that  the  police visit was related to the mix-up  of  identities
between  McGrew and Darryl Pointdexter, but she also agreed  with
her  earlier  testimony that she had no specific recollection  of
McGrews  entry  and  that the police visit  could  have  been  in
response  to  a domestic violence complaint by Shila  Davis.   In
response  to the June 21 report, Beckner took no action  to  find
out  from the police why they had tried to arrest him.   On  July
22, 1999, two days before the murder, McGrew failed to report  as
scheduled.   Beckner  took no action in response  to  the  missed
          Ebony Cowles, the personal representative of the Estate
of  Shila  Davis and guardian of the surviving child, filed  suit
against  the State Department of Corrections and the Municipality
of  Anchorage.   The complaint alleges that the  State  committed
negligence  by  failing to implement and enforce  an  appropriate
parole  plan,  to  require appropriate post-release  therapy,  to
enforce parole violations, to properly supervise McGrew,  and  to
revoke his parole.
          The State moved for summary judgment.  The State argued
that  our  decision in Neakok should be overruled  and  therefore
that  the  State  owes  no  duty of care  to  victims  of  crimes
committed by parolees.  The State also argued that it was  immune
from suit and that it was entitled to judgment as a matter of law
on  the issue of causation.  The superior court denied the motion
for  summary  judgment.   We accepted  the  States  petition  for
          We  review denials of summary judgment motions de  novo
to  determine  whether there are genuine issues of material  fact
and  whether the moving party is entitled to judgment as a matter
of law, viewing all facts in the light most favorable to the non-
movant.9   We review de novo the existence and extent of  a  duty
of   care.10     Whether  a  governmental  act  is  entitled   to
discretionary function immunity is also a matter of law  that  is
reviewed de novo.11
          We  overrule a prior decision of this court when we are
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. 12
          We addressed in Neakok13 the question whether the State
can  be  held liable for negligent parole supervision.   In  that
case,  the  relatives  of three people murdered  by  a  mandatory
parolee  sued  DOC for negligence, alleging, among other  things,
that  DOC failed to impose appropriate parole conditions  and  to
supervise  the parolee adequately.14 We held in Neakok  that  the
State  owes a duty of care to a parolees foreseeable victims  and
that  the  State  is not immune from suit for negligence  in  the
selection of parole conditions and the supervision of parolees.15
          In this appeal the State asks us to overrule Neakok by finding
that  the State owes no duty of care to parolees victims and that
discretionary function immunity applies to all of Cowless claims,
including   those   alleging  negligent  imposition   of   parole
conditions  and  negligent parole supervision.   The  State  also
argues that it was entitled to judgment as a matter of law on the
issue of causation.
          Although  we  usually  determine whether  a  tort  duty
exists  before  reaching  the question of discretionary  function
immunity,16 in this case we analyze immunity first because  doing
so  clarifies the public policy considerations that also bear  on
our duty analysis.17
     A.   Discretionary Function Immunity
          Under  the Alaska Tort Claims Act, the State is  immune
from  suit for tort claims 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.18   We  have
recognized that the term discretionary in AS 09.50.250 should not
be  interpreted broadly to encompass all state actions  involving
discretion.19   Instead,  we examine  each  act  or  function  to
determine whether it can be described as planning or operational.20
A  planning  decision  is one that involves  policy  formulation,
while   an   operational  decision  involves  the  execution   or
implementation of a policy already formulated.21   When  statutes
and   regulations  do  not  require  officials   to   execute   a
predetermined  policy and instead delegate  authority  to  decide
policy   matters,  the  resulting  determinations  are   planning
decisions.22  Only acts or functions occurring  at  the  planning
level  are entitled to immunity as discretionary functions  under
AS   In this way, discretionary  function  immunity
ensures  that courts do not step into the policy roles  committed
to other branches of government.24
          The  State argues that discretionary function  immunity
bars all claims in this suit.  Cowles responds that the State  is
not  immune because parole supervision involves operational  acts
rather  than planning decisions.  We do not determine whether  an
entire  class  of  decisions, such as  those  related  to  parole
supervision,  are entitled to immunity.25  Rather, the  allegedly
negligent  decisions  in  a  particular  case  must  be  examined
individually to determine if they are planning or operational  in
nature.26  Cowless complaint alleges that the State and DOC failed
to  implement and enforce an appropriate parole plan for  McGrew,
to  require  appropriate  post-release therapy,  to  enforce  and
report parole violations, to act in response to McGrews dangerous
behavior,   to   comply  with  the  statutes,  regulations,   and
guidelines  governing  supervision of  parolees,  and  to  revoke
McGrews  parole.   The parties have not systematically  addressed
each  of  these individual allegations in their briefs.   We  set
forth  here the boundaries of discretionary function immunity  as
it   relates   to  the  decisions  involving  parole  supervision
addressed  in  Cowless complaint.  On remand, the superior  court
should   make  a  separate  determination  for  each  of  Cowless
allegations  following the principles announced in  this  opinion
          and in our other decisions concerning discretionary function
immunity.27   The allegations of negligence in Cowless  complaint
can   be   placed  into  two  groups  for  the  purpose  of   the
discretionary duty analysis: decisions made by the  parole  board
or its members, and decisions made by McGrews parole officer.
          1.   Decisions made by the parole board
          Some  allegations in Cowless complaint appear to  refer
to  actions or omissions on the part of the parole board.   These
include  failure  to  impose appropriate  parole  conditions,  to
require appropriate post-release therapy,28 and to revoke McGrews
parole.29   All of these decisions are protected by discretionary
function  immunity.   As  pointed out in the  dissent  in  Neakok
written   by  Justice  Matthews  and  joined  by  Chief   Justice
Rabinowitz, decisions regarding conditions of parole are akin  to
decisions which a sentencing judge must make in deciding  on  the
terms of a sentence of probation and are plainly discretionary.30
          Determining  the  appropriate  parole  conditions  upon
release and deciding whether or not to revoke an offenders parole
or  whether  or not to release an offender pending  a  revocation
hearing   are  all  planning  decisions.   They  require  careful
weighing  of policy considerations, including public safety,  the
need to rehabilitate and reintegrate offenders, the allocation of
resources   available  to  treat  and  supervise  parolees,   and
potential  prison  overcrowding.31  The purpose of  discretionary
function  immunity  to maintain the separation of powers  between
the  judiciary and the executive or legislative branches  and  to
give  agencies latitude to perform their policy-making  functions
without fear of liability32  dictates that such determinations be
shielded  with  immunity.  We therefore overrule the  holding  in
Neakok  that  [f]ormulation of [a] parole plan, and selection  of
special  [parole] conditions are not planning activities entitled
to immunity.33
          In  Neakok,  our analysis of duty and immunity  applied
only  to  parole  officers,  not the  parole  board,  because  no
reasonable jury could find the board at fault in that case.34  But
the language in Neakok was broad.  Because the parole board makes
decisions about parole conditions, Neakok could be read to  apply
to  the board.  We therefore overrule this holding to ensure that
officials are not pressured to err on the side of restrictiveness
when considering discretionary parole.35  We are clearly convinced
that  this rule was originally erroneous and that departing  from
our  holding in Neakok would do more good than harm by preventing
courts  from  intruding on policy-making activities committed  to
other branches of government.36
          2.   Decisions made by the parole officer
          Cowless  complaint also alleges that Beckner  committed
negligence by failing to enforce and report parole violations, to
comply  with the statutes, regulations, and guidelines  governing
the  supervision  of  parolees, to act  in  response  to  McGrews
dangerous  behavior,  and  to seek to  revoke  his  parole.   The
parties  dispute  whether  Beckners acts  were  discretionary  or
operational.   In  asserting that the State is  not  entitled  to
immunity,  Cowles focuses on three allegedly negligent  omissions
on  the part of Beckner:  (1) failure to report parole violations
and seek revocation; (2) failure to follow DOC policies governing
offender  classification  and  supervision  standards;  and   (3)
failure  to  investigate potential parole violations  and  ensure
McGrews compliance with the conditions of parole.
          Cowles  argues that Beckner was required by DOC  policy
to  respond to McGrews parole violations, and therefore that  her
failure to recommend parole revocation was not immune.  The State
contends  that  a  parole officers decision to  report  a  parole
violation or to pursue revocation is immune from suit because  it
requires judgment and discretion to determine the point at  which
counseling,  . . . warnings and other means to obtain  compliance
with conditions are unsuccessful.  The States characterization of
the  parole  officers function is accurate with  respect  to  the
officers  response to minor parole violations,  but  not  serious
violations.   DOC  Policy 902.14 mandates that an  officer  shall
file  a petition to revoke parole if there is probable cause that
the   offender  committed  a  serious  violation  but  is   given
discretion whether to initiate revocation action if the  offender
commits  a  minor  violation.37   Under  the  policy,  a  serious
violation includes all felony behavior, [c]lass A misdemeanor(s),
except  in the instance where the supervising probation  officers
discretionary authority may denominate the misdemeanor as a minor
violation,  and technical violations that constitute  a  criminal
act  or  jeopardize  the property or safety of another  person.38
Minor violations include class B misdemeanors, state or municipal
code violations, and technical parole violations.39
          A  parole officer therefore has no discretion, and thus
no  immunity,  in responding to felony behavior or other  actions
that jeopardize the property or the safety of another person;  in
such cases the officer is simply executing a pre-existing policy.
However, the officer can exercise judgment in deciding whether to
petition  to  revoke  parole  where  a  client  commits  a  minor
violation.   The exercise of some discretion does not  in  itself
confer immunity.40  Nevertheless, when the parole officer is given
a  choice,  the decision whether or not to seek to revoke  parole
involves the same weighing of policy matters that a parole  board
engages  in  when it makes the final parole revocation  decision.
Beckner was not aware of a parole violation that required her  to
petition  to  revoke  McGrews parole  under  DOC  policy.41   Her
decision  not  to  pursue  revocation  in  response  to   McGrews
technical violations, including his missed appointment  two  days
before  the  murder,  is  therefore  protected  by  discretionary
function immunity.
          Cowless  complaint also alleges that Beckner failed  to
comply  with  the  regulations  and guidelines  governing  parole
          supervision.  She argues on appeal that no immunity attaches to
Beckners failure to accurately complete the risk assessments  for
McGrew  and  to follow up on the statement on his monthly  report
form  that the police had come to his house to arrest  him.   The
day-to-day  supervisory activities of a parole officer,  such  as
filling out risk assessment scales and investigating the apparent
commission  of  a  serious violation are operational  duties  not
entitled to immunity.  DOC policies mandate that the officer  use
the  risk assessment scales to assign a supervision level to each
case,  and  set forth the extent and type of contact required  to
supervise   offenders  based  on  their  risk   classification.42
Similarly, DOC Policy 902.14 requires officers to investigate the
charges and circumstances surrounding [a]n offenders arrest  for,
or  apparent commission of, a serious or minor violation, and  to
seek  revocation  if there is probable cause  that  the  offender
committed a serious violation.43  Discretionary function immunity
does  not  apply to these activities because a parole officer  is
not  required  to  choose between competing  policy  concerns  in
performing these duties, but merely to exercise some judgment  in
carrying out established DOC directives.44  This conclusion finds
support  in  the decisions of other courts that have  refused  to
apply discretionary function immunity to the day-to-day functions
of probation and parole officers.45  Accordingly, the State is not
immune  from suit based on Beckners alleged negligence in filling
out the risk assessment forms.  It is unclear whether Beckner was
given  notice  of the apparent commission of a violation  because
there is a question of fact as to what happened at the meeting at
which  McGrew  gave Beckner the monthly report stating  that  the
police  had  come  to  arrest  him and  whether,  based  on  that
interaction,  Beckner  could conclude that  the  report  did  not
indicate  an apparent commission of a parole violation.   Because
this  case reaches us from a denial of summary judgment, we  must
view  all  facts  in the light most favorable to  the  non-moving
party.  Issues of material fact preclude summary judgment for the
State on this issue.
            However,  seeking out possible parole  violations  of
which   the  parole  officer  has  no  notice  involves  planning
decisions  that are entitled to discretionary function  immunity.
A  parole officer must make policy judgments in deciding  how  to
allocate  time  and resources among various clients.46   And  the
officer   must  balance  the  interests  of  public  safety   and
rehabilitation of offenders when deciding how much time to devote
to   seeking  out  potential  parole  violations  as  opposed  to
assisting clients with housing, rehabilitation, and other needs.47
We follow Justice Matthewss Neakok dissent in declining to impose
liability for an alleged failure to seek out parole violations.48
Accordingly,  the  State  may not be  held  liable  for  Beckners
alleged  negligence  in  failing to take  affirmative  action  to
discover parole violations of which she had no notice.
     B.   Duty
          The  State contends that it owes no duty of care to the
victims  of  crimes  committed by   parolees.   It  urges  us  to
overrule  our  contrary  holding  in  Neakok,  arguing  that  the
reasoning of our decision in Sandsness49 suggests that this  part
          of Neakok is erroneous.
          In  Sandsness, a juvenile offender committed murder not
long  after  he  had been released from custody.50   The  victims
relatives sued the State for negligence, alleging that the  State
knew  the juvenile posed a threat and should have asked the court
to extend his commitment.51  We held that the State had no duty to
use  due care in deciding whether to extend the commitment  of  a
juvenile offender.52  We reasoned that imposing such a duty would
conflict   with  the  States  goal  of  rehabilitating   juvenile
offenders  by causing the State to  err on the side of  excessive
detention  to avoid negligence suits or judgments. 53  The  State
argues  that the same concerns animate this case.  But  Sandsness
involved  a  claim  of  negligent release, not  negligent  parole
supervision.54  Unlike the situation in Sandsness,  there  is  no
danger that the prospect of state tort liability will be a factor
in  deciding  whether to incarcerate an offender.  The  State  is
immune  from  liability  for  negligence  in  the  parole  boards
decisions  concerning  parole conditions and  parole  revocation.
Allowing  recovery for a parole officers failure to  comply  with
DOC  policies  governing parole supervision  does  no  more  than
encourage  adherence to those policies, reinforcing  rather  than
distorting  the  balance between public safety and rehabilitation
fashioned by the legislature and DOC.
          The State points out that in Sandsness we relied on the
Vermont  Supreme  Court in Sorge v. State55 and  argues  that  we
should  adopt  the  reasoning in Sorge to overrule  Neakok.   The
Sorge  court declined to find a duty in a non-detention  juvenile
corrections context because the primary function of probation and
parole is to rehabilitate conduct rather than control it.56   The
reasoning  of  Sorge  was relevant to our  holding  in  Sandsness
because Sandsness was a negligent release case that presented the
danger   that  imposing  liability  would  result  in   excessive
detention.   But  our  approach in the present  case  is  equally
protective of the rehabilitative function of supervision programs
as  that used in Sorge.  Sorge uses a blunt instrument to protect
the  rehabilitative  goal  of parole programs:   it  declines  to
impose  liability in any context by refusing to impose a duty  to
supervise  parolees.   We  adopt  a  more  targeted  approach  by
imposing such a duty but using discretionary function immunity to
ensure  that  the rehabilitative purpose of parole  will  not  be
          Nor are we clearly convinced57 that our determination in
Neakok  that  the  State  has a duty  to  exercise  due  care  in
supervising parolees is erroneous.  The proposed final  draft  of
the  Restatement  (Third) of Torts includes a comment  explicitly
stating  that  those  who  supervise parolees,  probationers,  or
others in prerelease programs . . . are appropriately held to  an
affirmative duty of reasonable care.58  Although there is a split
of   authority  on  this  question,  several  courts   in   other
jurisdictions have imposed a duty of care for the supervision  of
          At  least one court has suggested that before liability
can attach the parole officer must have a special relationship to
the  victim or victim class that creates a duty beyond that  owed
          to the public as a whole.60  The victim class in that case was
defined  to  include young boys who might have  frequent  contact
with  the offender.61 This approach stems from the importance  of
foreseeable harm in the determination of whether to impose a tort
duty.62  In Neakok, we held that a duty of care is owed to victims
who   are   foreseeable,  though  not  necessarily   specifically
identifiable.63   We  noted that in that case  the  victims  were
foreseeable  as  more than simply members of the  general  public
because they were residents of the isolated community into  which
the  offender  was released, and because one of the  victims  had
been  identified by a prison employee as particularly at  risk.64
Forgiving  the opinions broad dicta, we read Neakok to  impose  a
duty only where officials know, or reasonably should know, that a
parolee poses a danger to a particular individual or identifiable
group.   Thus,  our foreseeability analysis in  Neakok  is  quite
similar to the requirement of a particularized relationship to an
identifiable victim class adopted by some jurisdictions and leads
to   similar  results.   McGrews  victims  were  foreseeable  and
identifiable  as more than simply members of the  general  public
because  they  were members of McGrews household.  Similarly,  in
the  companion case C.J. v. State, Department of Corrections,  it
was foreseeable that if not properly supervised, the offender,  a
convicted rapist, might rape a woman in the community into  which
he was released.65
          The  dissent in Neakok suggests that a duty  should  be
imposed  only where a parole officer receives notice of  imminent
peril,  akin to our cases involving the duty of a police  officer
to  respond to a known life-threatening situation.66  But  parole
officers, unlike police officers, have a special relationship  to
parolees  under their supervision that gives rise to  a  duty  of
care.67   The closest analogy to the Neakok dissents approach  is
our  decision  in  Dinsmore-Poff v. Alford, where  we  held  that
parents who know that their child has a tendency towards violence
can  be held liable for harm committed by that child only if  the
parent  had  reason to know with some specificity  of  a  present
opportunity  and  need  to restrain the  child  to  prevent  some
imminently  foreseeable  harm.68  But  parents  are  in  quite  a
different  position  from parole officers.  Parole  officers  are
trained  professionals employed by an agency whose job it  is  to
formulate supervision policies that promote rehabilitation  while
protecting  the  public from the offenders in  its  charge.  Most
important, unlike parents, the State is immune from liability for
all  discretionary planning or policy decisions  made  by  parole
officers;  liability  will attach only  where  a  parole  officer
commits  negligence  in  performing  operational  functions  that
implement DOCs policies.
          The  dissent  suggests  that  liability  for  negligent
supervision could lead the State to err on the side of  continued
detention to avoid liability.69  But discretionary decisions about
parole  release,  conditions,  and revocations  are  immune  from
liability.  Because neither the parole board nor parole  officers
are  exposed  to liability for policy decisions to  release,  set
conditions,  or revoke parole, our decision creates no  incentive
for  additional confinement.  And if the State is concerned about
          possible liability from negligent supervision associated with
officers  operational  duties,  adequate  training  can  offer  a
mechanism to ensure that officers adhere to department policies.70
We  recognize that parole supervision is a difficult job.  But we
believe  that  imposing  a  duty  of  care  while  providing  for
discretionary function immunity for policy decisions will protect
the States rehabilitative goals while encouraging parole officers
to carry out their mandated operational duties in a non-negligent
          Nothing  in  our  case  law  or  the  cases  in   other
jurisdictions convinces us that our duty analysis in   Neakok  is
erroneous.   We  therefore  decline to overrule  our  holding  in
Neakok  that  the  State  has  an  actionable  duty  of  care  in
supervising  parolees.   Our case law  has  established  factors,
commonly referred to as the D.S.W. factors, to determine  whether
a  duty  of  care exists.71  But as the State has recognized,  we
adhere  to precedent without re-applying the D.S.W. factors  when
we  have already addressed the issue of duty in a closely related
case.72    Neakok  squarely  addressed  the  issue  of  negligent
supervision  and  established a duty  to  exercise  due  care  in
supervising  parolees.  Having found that this holding  does  not
meet the standard for overturning precedent, we decline to engage
in  the dissents analysis of the D.S.W. factors as if Neakok  had
not been decided.  The State appealed the trial courts denial  of
summary judgment on all three asserted independent grounds: duty,
discretionary function immunity, and causation.  Even  though  we
uphold  the trial courts denial of summary judgment on the  issue
of  duty,  we  are  still  compelled to  examine  its  ruling  on
discretionary function immunity.  And as the State argued in  its
summary   judgment   motion,  discretionary   function   immunity
addresses  the  same  public policy  issues  found  in  the  duty
analysis.   Thus,  we  address many of  the  same  public  policy
implications raised by a duty analysis through our discussion  of
discretionary function immunity.
          We  therefore  affirm the trial courts  ruling  on  the
issue  of duty: there is sufficient evidence to withstand summary
judgment.  When viewed in the light most favorable to Cowles, the
record  suggests  that  Beckner knew of the relationship  between
Davis  and  McGrew and knew that the police had  come  to  arrest
McGrew.  This evidence raises a genuine issue of material fact as
to  whether  Beckner knew or reasonably should  have  known  that
McGrew posed a danger to Davis and her family and whether Beckner
breached her duty.
     C.   Causation
          The  State  argues that even if it breached a  duty  to
Cowles  and  is not immune from liability for that breach  it  is
nevertheless entitled to summary judgment because as a matter  of
law  its  actions did not cause Cowless injuries.  Cowles  argues
that the issue of causation is a question of fact for the jury.
          We  have  held that negligent conduct may  properly  be
found to be a legal cause of a plaintiffs injury if the negligent
act  was  more likely than not a substantial factor  in  bringing
about (the) injury.73  The substantial factor test is satisfied by
showing   both that the [injury] would not have happened but  for
          the defendants negligence and that the negligent act was so
important in bringing about the injury that reasonable men  would
regard it as a cause and attach responsibility to it. 74
          The State contends that the connection between its acts
and  the  murder  was  too  attenuated  to  establish  causation,
particularly since Beckner could not have revoked McGrews  parole
without the independent action of the parole board.  Our decision
requires  the  superior court to reexamine whether the  State  is
entitled  to  discretionary function immunity  for  some  of  its
allegedly  negligent  acts.  That reexamination  may  affect  the
superior courts causation analysis, for Cowles may only  rely  on
non-immune  acts to establish causation. We therefore remand  the
case to the superior court for a ruling on causation in light  of
its  discretionary  function immunity rulings.  Although  Cowless
theory  of liability requires an extended chain of causation,  we
cannot  say that as a matter of law the States alleged negligence
did  not  cause her injuries.  Reasonable jurors could find  that
Beckner would have discovered the domestic violence complaints if
she had supervised McGrew properly.  They could further find that
this  information  would  have changed Beckners  and  the  parole
boards  view of McGrew since, according to her affidavit, Beckner
attached a great deal of significance to what she thought  was  a
long-term  stable  relationship with Davis  indicating  he  might
succeed  on parole.  Reasonable jurors could find that  once  the
domestic violence problem was known the parole board would likely
have  revoked  McGrews  parole, thereby  preventing  the  murder.
Accordingly, material questions of fact preclude summary judgment
for the State on the issue of causation.
          Because the State is entitled to discretionary function
immunity with respect to at least some of the allegations in  the
complaint, we VACATE the superior courts order denying the States
motion  for  summary judgment.  We REMAND for further proceedings
consistent with this opinion.
BRYNER, Chief Justice, with whom CARPENETI, Justice, joins except
with regard to the last paragraph, concurring.
          I  agree with the courts decision but have reservations
concerning three points addressed in its opinion.
          First,  I  do  not  believe that  it  is  necessary  to
overrule  any  aspect  of  Neakok1 in  this  case.   Because  any
decision  that overturns precedent necessarily erodes the  values
of  stare decisis, I would use this extraordinary power only upon
a  compelling showing that its use is necessary and only when the
point of law to be disavowed is squarely at issue.
          As we have consistently recognized in the past, 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. 2  Here,
the  state has failed to meet this burden.3  Although it  insists
that  Neakok was wrongly decided, the state cites no statistical,
experiential,   or  authoritative  evidence   to   support   this
contention.  It simply reargues the points considered  in  Neakok
in  hopes that the current court will disagree with the decision.
This  is  precisely  what  the rule of  stare  decisis  seeks  to
prevent:  The stare decisis doctrine rests on a solid bedrock  of
practicality:  no judicial system could do societys  work  if  it
eyed each issue afresh in every case that raised it. 4
          Moreover,  the  point overturned by the  court  is  not
squarely  raised  here.  The opinion overrules Neakoks  statement
that  [f]ormulation of [a] parole plan, and selection of  special
[parole]  conditions5 are non-immune operational functions.6   As
set out in Neakok, this ruling addressed only a prison counselors
task  of  establishing  a  parole  plan  and  a  parole  officers
authority to set special conditions of parole.  Neither of  these
functions is at issue here.7
          The  court  nevertheless holds that Neakoks  ruling  on
this point must be overturned to prevent it from applying to  the
parole  board.8   Yet  Neakok expressly declined  to  extend  its
immunity  ruling to the parole board or its members,  emphasizing
that  parole  boards have frequently been afforded quasi-judicial
immunity from liability for their decisions.9  Since, by its  own
terms,  Neakok  did not apply this aspect of its  ruling  to  the
parole  boards functions, there is no need to overturn the ruling
in  addressing  the  parole boards immunity here.   Although  the
court may have well-founded concerns that Neakoks ruling might be
extended to parole board functions in future cases, there  is  no
need to overrule Neakok to resolve these concerns: the court  can
simply  hold that Neakoks immunity ruling does not extend to  the
parole board.
          My second reservation about todays opinion concerns its
discussion of a parole officers discretionary function  immunity.
In  my  view, the courts carefully targeted narrowing of  Neakoks
broad   language  discussing  the  scope  of  a  parole  officers
actionable duty leaves little need to further limit or refine our
already   well-defined  law  addressing  discretionary   function
          immunity.  In this respect, while I certainly agree with the
courts  view  that a mandatory DOC policy provides  a  sufficient
basis for declaring a parole officers function to be operational,
I  am  concerned  that  the opinion might  be  read  to  say  the
converse,  as  well   that  a  non-mandatory  policy  necessarily
suffices to establish a policy planning function.
          I  do  not  read the opinion as so holding.  The  court
correctly  recognizes that a DOC policy conferring discretion  on
parole  officers may often prove determinative by signaling  that
the  described  function actually involves policy  and  planning.
But  a rule intractably declaring that all non-mandatory policies
describe  functions  that are automatically  shielded  would  run
counter  to  our  well-settled  case  law10  and  could  lead  to
anomalous results.11
          My  last reservation about todays opinion concerns  its
observation  addressing  the companion  case,  C.J.  v.  State.12
Specifically, applying the narrowed duty analysis adopted here to
C.J.,  the court states that in C.J. it was foreseeable  that  if
not  properly supervised, the offender, a convicted rapist, might
rape  a  woman  in  the community into which he  was  released.13
Although I have no doubt that this risk was foreseeable, I  would
hesitate  to conclude that the entire population of a  city  like
Anchorage  constitutes a sufficiently identifiable  victim  class
for purposes of establishing an actionable duty under Neakok.  To
the  extent  that  the courts observation suggests  otherwise,  I
would  rely  on  the concurring view I express on this  point  in
MATTHEWS, Justice, dissenting in part.
          I  agree  with  the opinion authored  by  Justice  Fabe
insofar  as  it overrules Division of Corrections v. Neakok1  and
holds  that the discretionary function exception immunizes parole
board release and revocation decisions.  Similarly, I agree  that
discretionary  immunity  applies  to  parole  officer   decisions
concerning conditions of parole and that Neakok must be overruled
on this point as well.  I also agree that a parole officer has no
duty to seek out, without notice, possible parole violations, and
I   agree   that  parole  officer  decisions  concerning   parole
revocation for minor violations of parole conditions are properly
protected  as  discretionary.  But I think the  court  should  go
further  and  consider  whether  Neakok  correctly  resolved  the
question  of  whether parole officers, and the  State,  generally
should be subject to tort liability for negligent supervision  of
          In  my  view  this question should be answered  in  the
negative primarily because parole officers do not have sufficient
control  over  parolees  to be able to  control  their  behavior.
Further,  imposing a general tort duty of supervision creates  an
incentive  for  parole  officers to choose the  most  restrictive
alternative   available   to  them   and   may   interfere   with
rehabilitative programs. I favor a rule that would subject parole
officers to tort liability only when the officer has notice  that
his  or  her  charge presents an imminent danger  of  harm  to  a
particular person or class of persons.  Such a rule would not  be
subject  to  the above deficiencies and would be consistent  with
our recent case law in analogous areas concerning torts involving
the  duty  to  control the actions of others.   I  discuss  these
points in the paragraphs that follow.
          The  holding in Neakok rested principally on  three  of
the  factors we adopted in D.S.W. v. Fairbanks North Star Borough
School  District2 to aid in deciding whether a duty of  care  for
tort  law purposes should exist.  According to the Neakok  court,
the  foreseeability of the harm caused by the States  failure  to
use  due  care  when supervising parolees, the closeness  of  the
connection  between that failure and the potential  harm  caused,
and the insignificance of any burden imposed on the State and the
community all weighed in favor of imposing a duty of due care  on
the  State.  I disagreed with the outcome then,3 and in  my  view
new  information  shows  that the Neakok  courts  conclusion  was
          Are  Criminal Acts a Foreseeable Risk of a  Failure  to
          Use Due Care in Parole Supervision?
          Foreseeability is said to be the most important  D.S.W.
factor.   Neakoks  conclusion that the State  has  a  substantial
ability  to  control the parolee is critical to its determination
that the State can be held liable for the foreseeable harm caused
by  negligently  supervised parolees.4  However, in  practice,  a
parole  officer  has  little or no meaningful  control  over  the
conduct of parolees.  The facts here illustrate the point. Parole
Officer Beckner is charged with incorrectly assigning McGrew to a
          medium instead of maximum supervision level.  But even if McGrew
had  been subject to maximum supervision, she would have met with
him  in her office for a short time only twice monthly and  would
have three field visits per year.
          Recidivism  upon  release from prison  is,  of  course,
foreseeable.   According to a 2005 study published by  the  Urban
Institute  (Study)  fewer  than  half  of  parolees  successfully
complete  their period of parole supervision without violating  a
condition of release or committing a new offense, and . . .  two-
thirds  of  all  prisoners are rearrested within three  years  of
release.5   But the foreseeability of recidivism in the  abstract
is  not  the  central  concern of a  duty  analysis.   The  right
question  is whether parole supervision at todays levels  reduces
recidivism.  The Study gives a generally negative answer to  this
question.   It  concludes that the overall effect of  supervision
appears  to be minimal.6  With respect to violent offenders   the
category  with  which  tort  law is most  concerned   the  Studys
statistics show that the predicted probability of rearrest within
two  years  after  release is remarkably  uniform  regardless  of
supervision.   The rate is fifty-five percent for those  who  are
released   unconditionally,  fifty-six  percent   for   mandatory
parolees such as McGrew in this case, and fifty-five percent  for
discretionary  parolees.7  Concerning offender types,  the  Study
concludes  that only property offenders released to discretionary
parole  benefit from supervision.  Violent offenders released  to
supervision  are  no  less  likely to be  rearrested  than  their
unsupervised counterparts.8
          The  Study  also  underscores the  point  that  parolee
supervision  as it is currently funded and conducted  has  little
chance to control the conduct of parolees:
               Parole  supervision is, in  fact,  quite
               minimal  in  most  cases.   Most  parole
               officers manage large caseloads  .  .  .
               and  typically meet with individuals for
               about  15 minutes once or twice a month.
               Why  would we expect such a small amount
               of  contact  to make a large  amount  of
               difference?   Parolees dont:   according
               to  one  study of parolees, most  report
               that their parole officer did not have a
               major  positive  or negative  impact  on
               their   postprison  behavior.    Clearly
               parole  supervision must  be  more  than
               occasional   if  it  is   to   have   an
               appreciable effect.[9]
          The  Study  notes that scholars have made a  number  of
suggestions concerning changes in post-prison programs that might
ultimately prove to be effective.10  But as to parole  as  it  is
currently  conducted, the Study concludes that, our  reliance  on
parole   serves   little  purpose  apart  from  providing   false
          Reliance  on  the  efficacy of parole  is  the  central
premise of Neakoks duty analysis.  The court determined that  the
          State stands in a special relationship12 to parolees because of
its  substantial  ability  to control the  parolee.   Given  this
special relationship, it is not unreasonable to impose a duty  of
care  on the state to protect the victims of parolees.13  Because
the  main  premise of Neakok  the substantial ability to  control
the  parolee   is invalid given parole supervision  as  currently
designed  and funded, Neakoks conclusion that this ability  leads
to  a  special  relationship giving rise to a tort duty  is  also
          Other  states have recognized that parole  officers  do
not  have  sufficient control of parolees to justify  imposing  a
tort  duty.  The Supreme Court of Kansas in Schmidt v. HTG,  Inc.
held  that parole officers lack sufficient control over  parolees
to  create  a  special relationship between the officer  and  the
parolee  under which a duty to control the conduct of the parolee
in  tort  might arise:  A parole officer does not take charge  or
exercise  control over a parolee so as to . . . impos[e]  a  duty
upon  the State to control the conduct of the parolee to  prevent
harm  to  other  persons  or  property.14   The  high  courts  of
Maryland, South Dakota, and Virginia have held likewise.15
          Closeness of the Connection
          Another  D.S.W.  factor  mentioned  by  Neakok  is  the
closeness  of connection between the defendants conduct  and  the
plaintiffs  injury.16   Neakok  simply  assumed  that  a   parole
officers  failure to supervise can be viewed as closely connected
to  an  injury suffered at the hands of a parolee.17  Yet as  the
facts here illustrate, the relationship between a parole officers
allegedly negligent supervision and a parolees criminal acts  can
be  far from obvious.  Todays opinion suggests that Beckners acts
of   negligence   in  supervising  McGrew  included   incorrectly
calculating  his  risk  score so that he was  assigned  a  medium
supervision level rather than a maximum supervision level.18  The
more  intensive level of supervision would have meant two monthly
meetings  rather than one and a field visit at least  once  every
four  months.   These were errors that related to McGrews  parole
between  his  release from prison in November 1996 and  July  17,
1998, when Beckner filed a violation report that resulted in  the
issuance  of  an  arrest warrant.  How close was  the  connection
between  these  alleged acts of negligence and  the  murder  that
McGrew committed on July 24, 1999?  Given that at the time of the
murder  McGrew  had been arrested and released by a discretionary
act  of  a  parole board member, and his revocation  hearing  was
pending,  one  can characterize the closeness of  the  connection
between  these acts and the murder as either extremely remote  or
          I  also observe, albeit repetitively because the D.S.W.
factors  overlap, that the idea that there is a close  connection
between  supervision  of  a  parolee and  preventing  a  parolees
criminal activities is also belied by the statistics contained in
the  Urban  Institute Study referenced above.   These  statistics
indicate that recidivism is not reduced by parole supervision for
parolees  convicted of violent crimes.  The Study tells  us  that
violent offenders who are released and not supervised do not  re-
offend  at a higher rate than violent offenders who are  released
          and supervised.  In other words, parole as it is currently
practiced  and  funded  has a minimal effect  on  public  safety.
Supervision,  whether  negligent or  not,  therefore  has  little
bearing  on  whether an offender will commit new  crimes.   Thus,
again, the idea that the relationship between the supervision  of
a  parolee and a parolees crimes is close enough to justify  tort
liability is, in my opinion, untenable.
          Burdens and Consequences
          Neakok  dismissed the notion that its  holding  imposed
significant  burdens  on  the State  and  community  by  focusing
primarily  on the financial impact of tort liability.   Potential
financial impact is an important factor given the recidivism rate
of  parolees  and  the  frequency of parole  violations.   But  a
potentially  more important burden is the effect  on  the  parole
          In  State  v. Sandsness we adopted the Vermont  Supreme
Courts reasoning in Sorge v. State that the State owes no duty to
control  juvenile offenders that it releases from custody.20   We
accepted  the  Sorge courts reasoning that because the  focus  of
juvenile jurisdiction is rehabilitation, the State could  not  be
liable  to third persons harmed by juveniles negligently released
from State rehabilitative programs.  The imposition of a duty  to
control  under  tort law in those circumstances would  cause  the
State to err on the side of detention and thus interfere with the
rehabilitative  process.21  Rehabilitation is also  an  important
function  of  parole.   Therefore,  while  the  facts  here   are
distinguishable from those in Sandsness and Sorge, the effect  on
parole-related programs is similar.
          Todays   opinion   suggests  that  the   rehabilitative
function  of  parole is preserved because discretionary  immunity
shields  the  State  from  liability  for  negligently  releasing
parolees  from detention.22  But the prospect of being  sued  for
negligent  supervision once a parolee is released may  cause  the
State  to  err on the side of continued detention.  In  addition,
once a parolee is released, either as a matter of discretion,  or
as  a matter of right, as in this case, the prospect of negligent
supervision liability will have a tendency to cause the State  to
err  on  the  side  of  renewed confinement when  violations  are
suspected or discovered.
          The  Sorge  court  reviewed the  authorities  that  had
rejected liability because of the potential interference that  it
could have on post-prison release programs at some length:
               Furthermore,  this  application  of  the
          319  exception to the rule that there  is  no
          common-law  duty to control  the  conduct  of
          another  to protect a third person  has  been
          rejected    by   jurisdictions   that    have
          recognized  that  most  juvenile  and   adult
          programs  dealing with persons  committed  to
          the  custody  of  the State are  intended  to
          rehabilitate conduct rather than control  it.
          See  Davenport  v. Community  Corrections  of
          Pikes  Peak Region, Inc.,  962 P.2d 963,  968
          (Colo.1998)  (Community  corrections  .  .  .
               programs  designed to . . .  reintegrate
          incarcerated   offenders   into    society.);
          Finnegan v. State,, 138 Vt. 603, 420 A.2d 104
          (1980); see also Ruf v. Honolulu Police Dept,
          89 Hawaii 315, 972 P.2d 1081, 1093 (1999) (in
          declining  to apply  319 to alleged negligent
          release  of  prisoner by police, court  notes
          that  risk of liability could pressure police
          to  err  more often on the side of  excessive
          detention).  Thus, for example, parents of  a
          restaurant employee who was raped and  killed
          by  a  coworker,  who had been  conditionally
          released from prison, asserted that   319  of
          the Restatement established a duty of care on
          the   part   of  the  Kansas  Department   of
          Corrections.  The  Supreme  Court  of  Kansas
          found that neither the parole officer nor the
          department of corrections had charge  of  the
          individual who committed the assault  to  the
          extent  necessary to fall within   319.   See
          Schmidt v. HTG, Inc., 265 Kan. 372, 961  P.2d
          677, 687 (1998).  In rejecting the imposition
          of   liability  upon  the  State  under   the
          rationale of  319, the court observed:
               [An]            overbroad
               construction   .   .    .
               escalates   the    States
               responsibility to that of
               the virtual guarantor  of
               the  safety of  each  and
               every one of its citizens
               from illegal and unlawful
               actions  of every parolee
               or  person released  from
               custody under any type or
               kind of supervision.
          Id.;  see also Thompson v. County of Alameda,
          27  Cal. 3d 741, 167 Cal. Rptr. 70, 614  P.2d
          728, 735 (1980) (parole and probation release
          .  .  .  comprise an integral and  continuing
          part in our correctional system authorized by
          the   Legislature,  serving  the  public   by
          rehabilitating   substantial    numbers    of
          offenders  and returning them to a productive
          position in society.); Whitcombe v. County of
          Yolo,  73  Cal. App. 3d 698, 141  Cal.  Rptr.
          189,  199 (1977) (Were we to find a cause  of
          action   [here]  we  would   in   effect   be
          encouraging  the  detention of  prisoners  in
          disregard   of  their  rights  and   societys
          needs.); Rivers, 133 Vt. at 14, 328  A.2d  at
          400 (argument that State should be liable for
          harm   caused  by  person  on  rehabilitative
          release  for failing to control such  persons
          runs  dangerously parallel to  the  arguments
          for preventative detention).[23]
          Based  on this review, I do not think that there  is  a
case  to  be  made  that  tort liability should  be  imposed  for
negligent   supervision  of  parolees.   To   summarize,   parole
supervision of violent offenders has been shown to be ineffective
in  preventing them from committing new crimes.  Since parole  as
presently conducted is ineffective at controlling the conduct  of
parolees, no special relationship giving rise to a tort  duty  to
control them should arise.  Further, it cannot be said that there
is  typically  a  close  connection  between  acts  of  negligent
supervision and the criminal conduct of parolees.
          But  two  things are clear.  First, acts of  recidivism
are  frequent,  and the imposition of tort liability  for  parole
supervision  shortcomings will have a tendency to skew  decision-
making  concerning  parolees in favor  of  the  most  restrictive
choice available.  Second, the premise on which Neakok based  its
conclusion  that  parole officers have a  tort  duty  to  control
parolees   that  parole  supervision  is  effective  in  reducing
recidivism  in  violent  offenders  was based  on  an  unexamined
assumption that the best information available today shows to  be
incorrect.   Thus the conditions for overruling a prior  decision
of  this  court  are  satisfied:   A  prior  decision  should  be
overruled  only  if  the  court is  clearly  convinced  that  the
precedent  is  erroneous or no longer sound  because  of  changed
conditions,  and  that  more good than  harm  would  result  from
overturning the case.24
          I  do  not suggest that parole officers should, in  all
circumstances,  be  immune  from tort  liability.   If  a  parole
officer has knowledge of a specific threat of imminent harm to  a
person or class of persons, the parole officer should have a tort
duty  to  take appropriate action.  Such a rule would  bring  the
tort  duties of parole officers in line with parents  and  police
officers.  A parent, for example, owes a duty to restrain a child
only  when there is reason for the parent to know that the  child
poses  an  imminent  and foreseeable risk of harm.25   Similarly,
police officers owe a duty of reasonable care . . . to respond to
threats  of  imminent, life-threatening, assaultive conduct  when
given sufficient specific information to respond.26
          For  these reasons, I respectfully dissent in part from
Justice Fabes opinion.

     1    721 P.2d 1121, 1125 (Alaska 1986).

     2    See id. at 1134.  Our decision in Neakok addressed this
question only in the context of whether a parole officer could be
held   liable  for  decisions  regarding  selection   of   parole
conditions  because  we concluded that no reasonable  jury  could
find  the board at fault in that case.  Id. at 1125 n.4.  Whether
discretionary function immunity applies to decisions made by  the
parole  board,  such  as the selection of parole  conditions  and
failure to revoke parole, as well as decisions made by the parole
officer, is at issue in this case.

     3     Because this case comes to us from a denial of summary
judgment, the statement of facts reflects the respondents version
of   the   disputed   facts.   See  Gordon  v.   Alaska   Pacific
Bancorporation, 753 P.2d 721, 722 n.1 (Alaska 1988).

     4     McGrew  also received a consecutive sentence of  three
years,  with two and one-half years suspended, for escape in  the
second  degree,  as  well as suspended sentences  for  theft  and
criminal  mischief.  He was also ordered to serve three years  of
probation following his incarceration.

     5     DOC  Policy 902.03 (1988).  Because both parties  cite
the  DOC  Policy dated July 14, 1988, we assume that this  policy
reflects  the provisions in force at all relevant times for  this

     6    Id.

     7    Id.

     8     According  to  Beckner,  Darryl  Poindexter,  who  had
recently   been   arrested,  had  at  one   time   used   McGrews
identification   card,  causing  the  ongoing   confusion   about

     9     State,  Dept of Health & Soc. Servs. v. Sandsness,  72
P.3d 299, 301 (Alaska 2003).

     10    Id.

     11    Kiokun v. State, Dept of Pub. Safety, 74 P.3d 209, 212
(Alaska 2003).

     12    State v. Coon, 974 P.2d 386, 394 (Alaska 1999) (quoting
State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996)).

     13    721 P.2d at 1126.

     14    Id. at 1124.

     15    Id. at 1125, 1134.

     16     See Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d  250,
254 (Alaska 2000).

     17    Kiokun, 74 P.3d at 213 (proceeding directly to immunity
because  that analysis illustrates the public policy issues  that
would also bear on a duty analysis).

     18    AS 09.50.250(1).

     19     Angnabooguk v. State, Dept of Natural Res.,  26  P.3d
447,  453  (Alaska 2001) (quoting State, Dept of Transp.  &  Pub.
Facilities v. Sanders, 944 P.2d 453, 456 (Alaska 1997)).

     20    Id.

     21    Id.

     22     Cf. Estate of Arrowwood v. State, 894 P.2d 642, 645-46
(Alaska 1995) (holding that officials decision to keep road  open
could  not  be  described  as merely operational  where  relevant
statutory  and  administrative code  provisions  do  not  require
officials  to  act  to  carry  out  a  predetermined  policy  and
delegate[] to officials on the scene the authority to  act  based
on their evaluation of conditions).

     23    Id.

     24    Kiokun, 74 P.3d at 215.

     25     See Angnabooguk, 26 P.3d at 455 (stating that we have
never  held  that  an  entire  class  of  decisions  .  .  .  are
necessarily bound up with policy considerations).

     26    See id. at 458.

     27    Cf. id. (declining to decide whether each allegation in
the  complaint  concerns  planning or operational  decisions  and
instructing  superior  court  on  remand  to  make   a   separate
determination  for  each  allegation  following  the   principles
announced by the court).

     28     The parole board generally imposes the conditions  of
parole,   including  special  conditions  such  as   therapy   or
treatment.   AS  33.16.150.   Parole  officers  may  also  impose
special  conditions  of  parole.   It  is  unclear  whether   the
complaint  alleges that the parole officer as well as the  parole
board  failed to impose appropriate parole conditions on  McGrew.
Our  conclusion  that decisions regarding parole  conditions  are
discretionary applies to decisions made by the parole officer  as
well as the parole board.

     29     The  parole  board determines whether  to  revoke  an
offenders parole.  AS 33.16.220.

     30    721 P.2d at 1137 (Matthews, J., dissenting).

     31    Cf. Kiokun, 74 P.3d at 216 (finding that state troopers
decision whether to launch a search and rescue effort was  immune
because  it  was based on resource allocation and  public  policy

     32    Estate of Arrowwood v. State, 894 P.2d 642, 645 (Alaska
1995).  Discretionary function immunity also ensures that  courts
avoid the re-examination of decisions which lie outside the realm
of their institutional competence.  Id.

     33    721 P.2d at 1134.

     34    See id. at 1125 n.4.

     35    Sandsness, 72 P.3d at 308 (Matthews, J., dissenting).

     36    Cf. Coon, 974 P.2d at 394 (discussing the standard for
overruling a prior decision of this court).

     37    DOC Policy 902.14 (1988).

     38    Id.

     39    Id.  The administrative regulation regarding reporting
of  parole violations similarly provides that all felony behavior
and  any serious misdemeanor behavior indicating that the parolee
is  a danger to the public must be reported to the board.  22 AAC
20.350(a)-(b).  The regulation further provides that if a parolee
fails  to  report once, the parole officer may notify the  board,
but  the  parole  officer shall notify the board if  the  parolee
misses two consecutive reporting periods.  22 AAC 20.350(c).   In
the  case  of any other type of parole violation, [r]eporting  of
the  violation may be held in abeyance in the discretion  of  the
parole officer.  22 AAC 20.350(d).

     40    See Angnabooguk, 26 P.3d at 453.

     41    She did, however, have notice that the police had come
to McGrews house to arrest him.  We address below whether she had
a  duty  to investigate based on this information.  Cowles argues
that  DOC policy required Beckner to file a violation report  and
recommend  full or partial revocation of parole because  some  of
McGrews violations involved positive tests for marijuana.  As the
State  points  out,  DOC  Policy 902.25 only  requires  a  parole
officer to recommend partial or full revocation in response to  a
positive  test if the parolee also committed one or more  serious
violations or is deemed to be a high risk to the community.   Use
of  marijuana  is  a class B misdemeanor and therefore  does  not
qualify as a serious violation.  AS 11.71.060; AS 11.71.190.

     42    DOC Policy 902.03.

     43    DOC Policy 902.14.

     44     See  Neakok,  721  P.2d at 1134 (noting  that  parole
officers  actions  in supervising offenders  are  ministerial  in

     45     See,  e.g., Acevedo by Acevedo v. Pima  County  Adult
Probation  Dept,  690  P.2d  38, 41 (Ariz.  1984)  (holding  that
probation  officers who allowed defendant to  have  contact  with
minors  in  violation of court order could not  assert  sovereign
immunity);  A.L. v. Commonwealth, 521 N.E. 2d 1017,  1024  (Mass.
1988)  (A  probation officers duty to make reasonable efforts  to
ascertain  whether a probationer has complied with the  terms  of
his  or  her probation is not a discretionary function.); Taggart
v.   State,  822  P.2d  243,  252  (Wash.  1992)  (holding   that
discretionary   function   immunity  does   not   shield   parole
supervision decisions).

     46     Cf. Adams v. City of Tenakee Springs, 963 P.2d  1047,
1051  (Alaska  1998)  (Decisions about  how  to  allocate  scarce
resources are matters of policy immune from judicial review.).

     47    Cf. Kiokun, 74 P.3d at 217 (holding that state troopers
decision  whether to undertake a search and rescue operation  was
immune  because it involved balancing of public safety objectives
and the allocation of resources).

     48    721 P.2d at 1137 (Matthews, J., dissenting).

     49    72 P.3d at 304.

     50    Id. at 300.

     51    Id.

     52    Id.

     53     Id. at 304 (quoting Sorge v. State, 762 A.2d 816, 821
(Vt. 2000)).

     54    Id. at 301.

     55    762 A.2d 816 (Vt. 2000).

     56    Id. at 821.

     57    Coon, 974 P.2d at 394.

     58    Restatement (Third) of Torts  41 cmt. f (Proposed Final
Draft No. 1, 2005).

     59     See, e.g., Starkenburg v. State, 934 P.2d 1018,  1028
(Mont.  1997); Faile v. South Carolina Dept of Juvenile  Justice,
566  S.E.2d  536 (S.C. 2002); Hertog ex rel. S.A.H.  v.  City  of
Seattle, 979 P.2d 400, 409 (Wash. 1999).

     60     A.L.  v.  Commonwealth, 521 N.E.2d 1017, 1021  (Mass.

     61    Id.

     62     Id.; see also Sandsness, 72 P.3d at 305 (stating that
foreseeability  is  the  most important  single  D.S.W.  factor);
D.S.W. v. Fairbanks North Star Borough Sch. Dist., 628 P.2d  554,
555  (Alaska  1981) (noting that foreseeability is  a  factor  in
determining whether to impose a duty of care).

     63    721 P.2d at 1129.

     64    Id.

     65    ___ P.3d ___, Op. No. 6081 (Alaska, December 15, 2006).

     66     721  P.2d at 1138 (Matthews, J., dissenting)  (citing
City of Kotzebue v. McLean, 702 P.2d 1309 (Alaska 1985)).

     67    Restatement (Third) of Torts  41 cmt.f (Proposed Final
Draft No. 1, 2005).

     68    972 P.2d 978, 986 (Alaska 1999).

     69    Dissent at 40.

     70     Cf.  City of Kotzebue v. McLean, 702 P.2d 1309,  1315
(Alaska 1985) (reasoning that imposing duty on police officers to
respond to imminent threats was consistent with officers training
and  created  an  incentive  for officers  to  follow  their  own
policies and procedures).

     71    See D.S.W., 628 P.2d 554 (Alaska 1981).

     72    Waskey v. Municipality of Anchorage, 909 P.2d 342, 343-
44 (Alaska 1996) (noting that it was unnecessary to resort to the
D.S.W. approach where the court had previously decided two  cases
more  closely  related to this case).  We did  apply  the  D.S.W.
factors  in  Sandsness.  72 P.3d at 305.  But there we explicitly
held  that  Neakok did not control, making applicable the  D.S.W.
framework.  Id.

     73     Sharp v. Fairbanks N. Star Borough, 569 P.2d 178, 181
(Alaska 1977) (internal quotations omitted).

     74     Id.  (quoting  State v. Abbott, 498  P.2d   712,  727
(Alaska 1972)).

1     State,  Div.  of  Corr. v. Neakok, 721  P.2d  1121  (Alaska

     2     Thomas v. Anchorage Equal Rights Commn, 102 P.3d  937,
943  (Alaska  2004)  (quoting State, Commercial  Fisheries  Entry
Commn  v.  Carlson,  65  P.3d 851, 859  (Alaska  2003)  (internal
quotations omitted)).

     3     In  his  dissenting  opinion, Justice  Matthews  cites
parole  statistics from a recent multi-state study by  the  Urban
Institute   Amy  Solomon, Vera Kachnowski & Avinash  Bhati,  Does
Parole  Work?  (Urban Institute, March 2005) (hereinafter  study)
as  a  basis  to  argue that Neakok should be  overruled  because
statistical  evidence now disproves Neakoks  main  premise   that
parole  officers  have  a  substantial  ability  to  control  the
parolee.   Dissent  at  37.   But the studys  statistics  do  not
support  the  dissents  theory.  The study  which,  incidentally,
excluded  Alaska   compiled data from fifteen  different  systems
without  taking into account variations potentially  attributable
to funding, staffing, training, or types of supervision within or
among  the systems studied.  Based on these statistics, the study
merely  compared rearrest rates for prisoners released  with  and
without  supervision  in the selected locations.   As  its  title
suggests, the study was designed as a descriptive measure, not  a
predictive one: it merely asked Does Parole Work as it  currently
exists   not Could Parole Work in a better-run system.  Moreover,
because  the study did not consider whether the states it studied
imposed  civil  liability for negligent parole  supervision,  its
findings  shed  no light on whether or how civil liability  might
affect parole officers supervision of their parolees.  Last,  and
most  notably,  the  authors of the study expressly  acknowledged
these   limitations,  warning  the  studys   readers   that   its
statistical  findings could not support sweeping  generalizations
like the dissent makes here:

               It  bears  repeating that the nature  of
          our analysis does not allow for insights into
          whether certain types of supervision, such as
          neighborhood-based or case management models,
          are  more  effective than others  or  whether
          there  are  differences  in  outcomes  across
          states.  It is also unclear how much rearrest
          outcomes  are the result of policy directives
          (e.g.,  a decision to watch more closely  and
          arrest   more   quickly)  and  not   criminal
          activity alone.
Study at 15.

     4     Thomas, 102 P.3d at 943 (quoting Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854 (1992)).

     5    Neakok, 721 P.2d at 1134.

     6    Slip Op. at 12.

     7    There is no hint of any claim against prison counselors
here,  nor  is  there  any  claim that  McGrews  parole  officer,
Beckner,  had any authority to set special conditions of  parole.
Notably, under current law, parole officers have no authority  to
set  special conditions of parole unless the authority  has  been
actually  delegated by the parole board or a  board  member.   AS

     8    Slip Op. at 12.

     9    Neakok, 721 P.2d at 1133 n.19 (citations omitted).

     10    See,  e.g.,  State  v. Abbott, 498  P.2d  712,  720-22
(Alaska 1972).

     11    Specifically, a rule that inflexibly viewed  all  non-
mandatory policies as describing immunized functions would  leave
the  department in charge of its own immunity by allowing  it  to
make all policies non-mandatory, thereby converting all functions
performed  by  parole officers, even driving a  nail,  id.,  into
planning and policy decisions.

     12    C.J.  v. State, Dept of Corr., ___ P.3d ___,  Op.  No.
6081 (Alaska, December 15, 2006).

     13   Slip Op. at 20-21.

     14   C.J., ___ P.3d ___, Op. No. 6081 at 24-25.

1    721 P.2d 1121 (Alaska 1986).

     2    628 P.2d 554 (Alaska 1981).

     3    Neakok, 721 P.2d at 1137 (Matthews, J., dissenting).

     4    Id. at 1126.

5      Amy   L.   Solomon  et  al.,  Does  Parole   Work?   Urban
Institute,         1         (2005),         available         at
The  purpose of this study was to assess, at an aggregate  level,
whether  parole works at reducing recidivism among those who  are
supervised after release from state prison.  Id. at 1.

     6    Id. at 15.

     7    Id. at 10, table 3.

     8     Id.  at  2.   I  set  out here in  full  the  Research
Highlights of the Study:
               Overall,  parole supervision has  little
               effect  on  rearrest rates  of  released
               prisoners.   Mandatory   parolees,   who
               account   for  the  largest   share   of
               released  prisoners, fare no  better  on
               supervision   than   similar   prisoners
               released  without supervision. In  fact,
               in  some  cases they fare worse.   While
               discretionary parolees are  less  likely
               to   be   rearrested,  this   difference
               narrows  (to 4 percentage points)  after
               taking     into     account     personal
               characteristics and criminal histories.
               Certain  prisoners  benefit  more   from
               supervisionespecially      discretionary
               release to supervisionthan others.   For
               example,  females, individuals with  few
               prior  arrests, public order  offenders,
               and  technical violators are less likely
               to  be  rearrested  if supervised  after
               prison.  Persons with a  combination  of
               these    characteristics,   representing
               relatively low-level offenders,  exhibit
               even lower rearrest rates if supervised.
               Conversely, supervision does not improve
               rearrest outcomes for some of the higher
               rate, more serious offenders.
               Of   the   largest  groups  of  released
               prisonersmale   drug,   property,    and
               violent offendersonly property offenders
               released to discretionary parole benefit
               from   supervision.   Violent  offenders
               released  to  supervision  are  no  less
               likely  to  be  rearrested  than   their
               unsupervised  counterparts.   For   male
               drug  offenders,  mandatory  release  to
               supervision  predicts  higher   rearrest
               rates  than for unconditional  releasees
               or discretionary parolees.
Id. at 1-2 (emphasis added).

     9    Id. at 16 (footnotes omitted).  The description in this
paragraph of the typical level of parole supervision squares with
Alaska  parole supervision as currently established.   See  infra
page  38 (Maximum supervision entails two monthly meetings and  a
field visit once every four months.).

     10   Id. at 16-17

     11   Id. at 17.  Chief Justice Bryner criticizes my reliance
on  the  Study.  He suggests that the Study is merely descriptive
of  the effectiveness of parole in the locations studied and does
not  show  that  parole  could not be  effective  in  better  run
systems.   Further, he claims that the data relied  upon  by  the
Study  is too limited to be relied on in Alaska since it is based
on statistics from only fifteen states, not including Alaska.  He
also  argues that the limitations inherent in the Study mean that
generalizations  about the ineffectiveness of parole  supervision
cannot  be drawn.  With respect to this point he quotes a caution
set  out  in  the Study relating to certain types of supervision.
Slip  Op.  at  26-27 note 3 (Concurring Opinion of Chief  Justice
          My response to these points follows.  The Study clearly
concludes that supervised parole as it is traditionally practiced
in  the  United  States  with respect  to  violent  offenders  is
ineffective  at reducing recidivism rates.  The recidivism  rates
for  violent  offenders who are subject to  supervision  are,  at
best,  only equal to the rates for violent offenders who are  not
subject  to  supervised parole.  They are not lower as  might  be
expected.  The Study, of course, does not attempt to isolate  any
role  that  negligent supervision might have  on  outcomes.   But
unless  we  are  to  assume  that all,  or  nearly  all,  of  the
supervision reflected in the Study was negligent, the Study  does
indicate  that non-negligent supervision does not produce  better
results  than  no supervision at all.  Otherwise, a reduction  in
recidivism rates would be reflected.
          It  is  of  course possible that if parole  supervision
programs  were  designed differently, or  if  substantially  more
money  were  committed  to  parole  supervision,  outcomes  might
improve.  But in deciding duty questions for tort law purposes we
must  look  at  programs as they exist and ask whether  it  makes
sense  to  impose tort law liability for program  failures.   For
example,  in  D.S.W. the question was whether there should  be  a
tort  duty  imposed  on  public schools to  recognize  and  treat
learning disabilities.  We held that there should not be  such  a
duty,  citing,  among  other reasons,  the  numerous  social  and
financial problems with which the public schools are beset.   628
P.2d  at  556.  If there is one thing clear in this case,  it  is
that  decisions  as  to the design and funding  level  of  parole
supervision  are  not reviewable in tort.  Thus,  the  fact  that
different  programs might be effective cannot be  the  basis  for
imposing liability for the shortcomings of the current program.
          Chief Justice Bryners criticism that the database  used
by  the  Study  results from fifteen states  is too  limited,  is
also  unwarranted.  Slip Op. at 26-27 note 3.  The  scholars  who
conducted the Study thought the data was sufficient to  draw  the
conclusions that they reached, and the focus of the Study was  on
national-level trends.  Study at 14.
          Chief  Justice  Bryners point that the Study  does  not
support the generalizations that I have relied on in this dissent
also  lacks  validity.  The generalizations that I  rely  on  are
those that the authors of the Study have made.  Specifically, the
Study  states:  Mandatory parolees, who account for  the  largest
share  of released prisoners, fare no better on supervision  than
similar  prisoners  released without supervision.   Study  at  1.
Violent  offenders released to supervision are no less likely  to
be  rearrested than their unsupervised counterparts.  Id.  at  2.
With  respect  to the language that Chief Justice Bryner  quotes,
the  scholarly caution reflected there does not, in the  view  of
the  authors,  undermine their overall conclusion.   Indeed,  the
sentence  immediately following the language quoted by the  Chief
Justice  states:   At  the same time, given  our  countrys  heavy
reliance  on parole to manage those released from prison,  it  is
discouragingalthough  not  wholly  unexpectedto  find  that   the
overall effect of supervision appears to be minimal.  Id. at 15.

12     That  is,  a  relationship  giving  rise  to  a  duty   to
control  the conduct of a third person.  See Restatement (Second)
of Torts  315(a) (1965).

     13   Neakok, 721 P.2d at 1126-27 (emphasis added).

     14   961 P.2d 677, 679 (Kan. 1998).

     15    Lamb v. Hopkins, 492 A.2d 1297, 1304 (Md. 1985); Small
v.  McKennan  Hosp.,  403 N.W.2d 410, 414  (S.D.  1987);  Fox  v.
Custis, 372 S.E.2d 373, 376 (Va. 1988).

     16   721 P.2d at 1125.

     17   Id. at 1129.

     18   Slip Op. at 13, 15-16 (Opinion of Justice Fabe).

     19    Further, as the facts of the companion to  this  case,
C.J.  v. State, ___ P.3d ___, Op. No. 6081 (Alaska, December  15,
2006),  indicate, issuing a parole violation report and an arrest
warrant may not suffice to prevent a parolee from committing  new

20    State  v.  Sandsness,  72 P.2d 299,  302-03  (Alaska  2003)
(citing Sorge v. State, 762 A.2d 816 (Vt. 2000)).

     21   Id. at 302.

     22   Slip Op. at 22 (Opinion of Justice Fabe).

     23   762 A.2d at 820-21.

     24    Kinegak v. State, Dept of Corrections, 129  P.3d  887,
889-90 (Alaska 2006).

     25    Dinsmore-Poff  v. Alvord, 972 P.2d  978,  986  (Alaska
1999)  (holding that a parents tort duty to restrain child exists
only  where the parent ha[s] reason to know with some specificity
of  a  present  opportunity and need to  restrain  the  child  to
prevent  some imminently foreseeable harm).

     26    Dore  v.  City of Fairbanks, 31 P.3d 788, 795  (Alaska
2001) (discussing the meaning of City of Kotzebue v. McLean,  702
P.2d 1309 (Alaska 1985)).

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