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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Estate of Elsie Logusak v. City of Togiak (06/13/2008) sp-6275

Estate of Elsie Logusak v. City of Togiak (06/13/2008) sp-6275, 185 P3d 103

     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

ESTATE OF ELSIE LOGUSAK, by )
its Personal Representative )
Frank Logusak, FRANK LOGUSAK, )
and FANNIE LOGUSAK, )
) Supreme Court No. S- 12533
Appellants, )
) Superior Court No.
v. ) 3DI-05-00020 CI
)
CITY OF TOGIAK, ) O P I N I O N
)
Appellee. ) No. 6275 - June 13, 2008
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Dillingham, Fred Torrisi, Judge.

          Appearances: Russell L. Winner  and  Marc  A.
          Jakubovic,  Winner  & Associates,  Anchorage,
          and  Myron  Angstman, Bethel, for Appellants.
          Frank  S.  Koziol, Anchorage, and  Howard  S.
          Trickey,    Jermain,   Dunnagan   &    Owens,
          Anchorage, for Appellee.

          Before:   Matthews, Eastaugh, and  Carpeneti,
          Justices.  [Fabe, Chief Justice  and  Bryner,
          Justice, not participating.]

          CARPENETI, Justice.

I.   INTRODUCTION
          The  parents  of a sixteen-year old who killed  herself
shortly  after being released from police custody to her  parents
sued  the  city  for wrongful death and negligent  infliction  of
emotional  distress.   The parents alleged that  police  officers
were  negligent in failing to detain their daughter in protective
custody.   The  superior court granted summary  judgment  to  the
city, concluding that the police officers had no duty to keep the
girl  in protective custody.  Although the police did have a duty
to act reasonably in releasing the girl to her parents, we affirm
the  decision  of the superior court because the police  did  not
breach this duty and because they are immune from suit.
II.  FACTS AND PROCEEDINGS
     A.   Facts
           Because the Logusaks appeal a superior courts grant of
summary  judgment, we draw all permissible factual inferences  in
favor of the Logusaks.1
          Elsie  Logusak grew up in Togiak, a small village where
Elsie  and  the events of her childhood were well  known  to  the
police officers of the town.  While Elsie was a child, one of her
brothers  died  in  a snow-machine accident and  another  brother
attempted suicide by shooting himself in the shoulder.
          Elsies  parents  had  a difficult time  handling  their
rebellious  sixteen-year  old  daughter.   They  were  unable  to
control where Elsie lived, and she moved back and forth from  her
parents  house to her sisters house as she pleased.  Elsie  began
drinking  at a young age and spent at least two evenings sobering
up in protective custody at the Togiak village jail.  On previous
occasions  when police officers notified the Logusaks after  they
found Elsie drinking, the Logusaks requested that the police keep
her  until  she  sobered up.  While in jail on one occasion,  she
talked about missing her deceased brother and she envisioned  her
funeral.
          On  September 3, 2004, the Logusaks returned to  Togiak
from  a week-long fishing trip.  During their absence, Elsie  had
stayed  with her sister, Desiree Green, as she usually did during
those  weeks  in the summer when her parents were  away  fishing.
She  intended  to move back with her parents to  live  with  them
during  the  school year.  On the evening of her parents  return,
Elsie  moved  her belongings from Desirees house to  her  parents
home.
          Around  10  p.m.,  Elsie left Desirees  house.   Elsies
brother,  Jim,  recalls that Elsie was sober at that  point.   At
approximately  12:30  a.m., Officer William  Ferris  found  Elsie
walking  along  the road.  He administered a breath  test,  which
showed  that  Elsie had a blood alcohol level  of  .056  percent.
Ferris called John Nick, the Togiak police department dispatcher,
and  asked Nick to call Elsies parents to tell them that she  had
been  drinking.  Ferris also reported that he planned to pick  up
Elsie  for  underage  drinking  and  curfew  violation.   Despite
Ferriss orders, Elsie refused to get into his police car and  ran
away  from him.  Unable to follow Elsie, Ferris called  Nick  and
asked  him to notify the Logusaks that she had been drinking  and
had fled.
          Approximately forty-five minutes after Elsie ran  away,
Ferris found Elsie lying on the side of Togiaks main road.  Elsie
was  non-responsive to Ferriss attempts to wake her.  Ferris then
called  Nick for assistance because Elsie appeared to  be  passed
out.   Nick  sent  Officer Molly Gust to the scene.   Gust,  also
unable  to  revive Elsie, bent down to check to see if Elsie  was
          breathing.  At that point, Gust noticed that Elsie was breathing
and  staring off, but still non-responsive.  After the police had
attempted  to  wake Elsie for over five minutes, Elsie  responded
with  a smile and told them she had tripped.  Both officers later
testified  that they believed that Elsie was playing  games  with
them.   The officers noticed  [k]ind of a strong odor of alcohol,
but did not administer a new breath test.
          After  reviving Elsie, the officers picked her  up  and
walked her to the police car.  Elsie could stand, but had trouble
walking  without  assistance.  Elsie told the officers  that  her
parents  were  not  home, and they drove her to  Desirees  house.
When they arrived at Desirees house, they found that Desiree  was
not  there.   Although her brother Jim was there,  they  did  not
leave Elsie with Jim because he too was underage and he was known
to consume alcohol.  The officers then decided to take Elsie back
to  her  parents house.  Gust radioed Nick and asked him to  tell
the  Logusaks that the officers were bringing Elsie back to their
house.   Nick  spoke  with Elsies father, Frank  Logusak.   Frank
asked  that the police keep Elsie in the can until she was sober.
Nick  replied that the police could not hold her because she  was
underage  (even though the police had previously  kept  Elsie  in
custody while she was intoxicated).
          Elsie rode with Gust to her parents house.  Elsie  told
Gust  that  she  would  join her brother if  taken  home  to  her
parents.  When the officers arrived at the Logusaks house,  Elsie
again  told the officers that she did not want to go home.  Elsie
then  tried  to  run  away, but tripped and fell.   The  officers
restrained  Elsie as she struggled to escape and  handcuffed  her
arms  behind  her  back.  They together picked Elsie  up  by  her
shoulders  and took her into the house.  Meanwhile,  Frank  asked
the  officers if they could take Elsie to the town jail until she
sobered  up.  Ferris again told Frank that the town jail was  not
an appropriate place to hold minors.
          The   officers   removed  Elsies  handcuffs   and   she
immediately  fell.  She then quickly stood up and  ran  into  her
brothers  bedroom.   As Frank Logusak argued  with  Ferris  about
leaving Elsie at the Logusak house, Fannie Logusak said she heard
scuffling  and  feared that Elsie might try to  leave  the  house
through the bedroom window. As Frank Logusak and Ferris tried  to
get the bedroom door open, Elsie shot and killed herself.
     B.   Proceedings
          On February 16, 2005, the Logusaks filed a suit against
the  City  of  Togiak.  The Logusaks alleged claims  of  wrongful
death  and negligent infliction of emotional distress due to  the
Togiak  officers  negligence in releasing Elsie  to  her  parents
while she was intoxicated.
          The  city denied all allegations and subsequently moved
for  summary judgment.  The city argued that it had  no  duty  to
prevent  Elsies  suicide because the officers did  not  know  nor
reasonably  should  have known that Elsie was  suicidal.   Togiak
further  asserted  that it was immune under  AS  09.65.070(d)(2),
which  provides  municipalities  immunity  from  suits  based  on
discretionary acts.
          The superior court granted the citys motion for summary
judgment, finding  that the city and its police officers did  not
owe a duty; as a result, the court declined to reach the immunity
question.  The Logusaks appeal this award of summary judgment.
III. STANDARD OF REVIEW
          We  review a courts award of summary judgment de novo.2
We will affirm a grant of summary judgment where no genuine issue
of  material fact exists and the prevailing party is entitled  to
judgment  as  a  matter  of law, drawing all  reasonable  factual
inferences in favor of the non-prevailing party.3
IV.  DISCUSSION
          We first analyze whether the police officers owed Elsie
a  duty.   In  negligence cases, we treat duty as  the  threshold
issue  because  [c]onceptually, the question of the applicability
of  a  statutory  immunity  does  not  even  arise  until  it  is
determined that a defendant otherwise owes a duty of care to  the
plaintiff  and  thus  would be liable  in  the  absence  of  such
immunity.4
     A.   Togiak Police Officers Did Not Breach Their Duty To Act
          Reasonably in Releasing Elsie to Her Parents.
          The  superior court awarded summary judgment to  Togiak
after  finding that Ferris and Gust did not have a duty  to  keep
Elsie  in  custody.   The Logusaks appeal this finding,  claiming
that  the  police have a heightened duty to protect  all  persons
taken into protective custody, and that therefore Ferris and Gust
had a duty to protect Elsie from self-inflicted injury.
          When determining whether there is an actionable duty of
care,  we  first look to common law principles and statutes  that
may  dictate such a duty.5  The Logusaks contend this duty arises
from  the common law jailer and parole officer duties of care  as
well   as  statutes  regulating  police  custody  of  individuals
incapacitated  by  alcohol and of minor  runaways.   We  are  not
persuaded that these common law or statutory duties apply to this
case.   Temporary police custody of an intoxicated minor presents
a much different situation than custody of a jail detainee  where
we have found a heightened duty of care due to the confinement of
a   person  away  from  an  environment  the  person  knows   and
understands6   and a much different situation than release  of  a
parolee   where we have imposed a duty based primarily on  parole
officers  enhanced knowledge of the behavior and habits of  their
parolees.7   Instead,  we look to the Alaska  legislatures  clear
effort  to  address  the  situation  before  us:  release  of  an
intoxicated  juvenile to her parents under AS 12.25.030.   Alaska
Statute  12.25.030(b)(3)(B) provides that a peace officer without
a  warrant  may  arrest  a  person when  the  peace  officer  has
reasonable  cause for believing that the person has  violated  AS
04.16.050  [the  prohibition against minors  consuming  alcohol];
however, unless there is a lawful reason for further detention, a
person  who is under the age of 18 . . . shall be cited  for  the
offense  and  released to the persons parent . .  .  .  (Emphasis
added.)   The legislature recognized a heightened need to release
a minor to her parents in situations where the minor is suspected
to  have  consumed alcohol.  Accordingly, we examine  the  police
officers actions under AS 12.25.030.8
          The  existence  of a statute addressing  the  situation
          before us is not the end of the inquiry, however.  Under the
doctrine of negligence per se, we may impose a duty of care where
a statute applies and certain requirements are met.  In Morris v.
Farley  Enterprises, Inc.,9 we adopted the Second Restatement  of
Torts definition of negligence per se:
          The  court  may  adopt  as  the  standard  of
          conduct   .  .  .  the  requirements   of   a
          legislative enactment . . . whose purpose  is
          found  to  be exclusively or in part  (a)  to
          protect a class of persons which includes the
          one  whose  interest is invaded, and  (b)  to
          protect  the  particular  interest  which  is
          being  invaded,  and  (c)  to  protect   that
          interest  against the kind of harm which  has
          resulted,  and  (d) to protect that  interest
          against the particular hazard from which  the
          harm results.[10]
Alaska  Statute 12.25.030 serves to protect a minor  arrested  by
peace  officers  by  calling for her  detention,  as  opposed  to
release  to  her  parents, only where the peace officers  have  a
lawful  reason for further detention.  We read into AS  12.25.030
the  duty  of police officers to act reasonably when releasing  a
detained  minor  to  her parents.  Under this statute,  a  police
officer   will  have  acted  non-negligently  where  the  officer
reasonably  believed that there was no lawful reason for  further
detention.
          Turning  to  the facts of this case, it is  clear  that
Ferris  and  Gust  acted  reasonably in releasing  Elsie  to  her
parents instead of detaining her.  Under AS 12.25.030, the police
officers  initially  properly took Elsie into  custody  based  on
their  reasonable belief that Elsie had violated AS 04.16.050,  a
belief  supported  by the result of her breath  test.   Once  the
officers detained Elsie, they were then governed by AS 12.25.030,
which  indicated  that the police must release  a  minor  to  her
parents unless there is a lawful reason not to do so.
          The Logusaks fail to present any facts to support their
argument that there was a lawful reason to keep Elsie in custody.
The  only other law that Elsie violated that evening was  a  city
curfew ordinance  a law that does not provide for detention under
any  circumstances.   In  addition, the  two  statutes  that  the
Logusaks  argue mandate detention, AS 47.37.170 and AS 47.10.141,
are  not applicable here and therefore are not lawful reasons for
further  detention. The former does not apply because  Elsie  was
not  incapacitated by alcohol as that term is defined  by  law.11
Elsie was not a runaway and therefore AS 47.10.141(b)(1)(A)  does
not apply.
          In  addition  to  the reasonableness  of  the  officers
actions  in  this particular case, general policy  considerations
support  encouraging  police officers  to  return  a  potentially
suicidal  minor  to  her parents.  Putting an allegedly  suicidal
minor  in  jail,  instead of returning her to her  parents,  runs
counter  to  previous decisions of this court.  In  Kanayurak  v.
North  Slope  Borough,  a case examining  the  duty  of  care  of
jailers,  we overturned a lower courts grant of summary  judgment
          to a municipality following the suicide of a detainee in the
municipalitys jail.12  In reasoning that there was a genuine issue
as  to the duty owed by the jailer to the detainee, we relied  on
expert  testimony that Eskimo women and incarcerated persons  are
particularly  prone to suicide; we relied also on the  fact  that
confinement  and  isolation are often factors that  increase  the
likelihood of suicide.13  Under Kanayurak, and especially in light
of  testimony  that  Elsie  had previously  expressed  fatalistic
thoughts while in jail, the police did not breach their  duty  in
releasing Elsie to her parents.
          We  therefore conclude (1) that the police officers did
have  a  duty to act reasonably in releasing Elsie to her parents
and (2) that, indulging all reasonable inferences in favor of the
Logusaks,  the police did not breach that duty but  rather  acted
reasonably in releasing Elsie to her parents.
     B.   The  Police Officers Acted Within Their Discretion  and
          Therefore Togiak Is Immune from Suit.
          We affirm the superior court for a second reason: Apart
from  the question of duty, we hold that the officers and  Togiak
are immune from suits of this sort.
          Alaska  Statute  09.65.070 exempts municipalities  from
civil liability for claims based upon the exercise or performance
or the failure to exercise or perform a discretionary function or
duty  by  a municipality or its agents . . . whether or  not  the
discretion involved is abused.  This statutory grant of immunity,
which  we  previously  characterized  as  discretionary  function
official immunity,14 is a type of qualified immunity.15  Under this
qualified  immunity, a public official is shielded from liability
.  .  . when discretionary acts within the scope of the officials
authority  are  done  in  good faith and  are  not  malicious  or
corrupt.16
          We have previously described discretionary functions as
actions   that  require  personal  deliberation,  decision,   and
judgment.17  In Pauley v. Anchorage School District,  we  granted
immunity to a school district under AS 09.65.070 after the school
released a child to his non-custodial parent.18  In holding  that
the  release of the child was a discretionary act, we considered,
among others, the following factors: (1) the principal acted with
deliberation  and made a considered judgment; (2)  the  principal
reviewed relevant court documents and identification presented by
the non-custodial parent; and (3) the principals actions were  in
no  sense  malicious, corrupt, or taken in bad faith.19  Although
the  facts of Pauley differ considerably from the events in  this
case,   we   find  the  analysis  for  classifying  an   act   as
discretionary instructive to the case at hand.
          We  recently clarified our test for determining whether
an  officer  is entitled to qualified immunity for  performing  a
discretionary act in Sheldon v. City of Ambler.20  In Sheldon  we
explicitly  adopted the federal immunity standard, as articulated
by  the  United  States  Supreme Court in Saucier  v.  Katz,  for
granting  discretionary  function  official  immunity  to  police
officers.21    The  Supreme Court, in Saucier, set out a two-part
test  for qualified immunity.  In determining whether an  officer
is immune, a court considers (1) whether an officers actions were
          objectively reasonable and (2) whether the officer might have
reasonably  believed  that  his actions  were  reasonable.22   In
Sheldon,  we  found  that a city was immune  from  suit  after  a
village  police  officer  (VPO), faced with  an  intoxicated  man
posing a violent threat to the mans girlfriend and others, in  an
escalating emergency situation, used a bear hug to take  the  man
down.23   Injuries resulting from this bear hug led to  the  mans
death.24  Because the VPO did not reasonably know that a bear hug
could  result in death and because the act itself was not on  its
face excessive or egregious, we held that he had acted reasonably
and that therefore the city was immune.25
          In  this situation, even drawing all factual inferences
in  the Logusaks favor, the decision of the police to take  Elsie
home  to her parents was clearly discretionary.  Under the Pauley
factors   for   characterizing   discretionary   acts    personal
deliberation,  decision, and judgment  it is  manifest  that  the
police  were  exercising discretion.  As discussed above,  Alaska
law  required that they release Elsie to her parents rather  than
retain her in custody  unless there was a lawful reason not to do
so.  Here, there was no lawful reason not to release Elsie to her
parents.   Indeed, the officers decision to release  her  to  her
parents   exhibited   reasoned  judgment.    The   uncontroverted
testimony  shows  police officers who simply  tried  to  take  an
intoxicated minor to her family so they could care for her.  They
first  drove Elsie to her sisters house so that her sister  could
care  for  her.  Upon learning her sister was not home  and  that
Elsies  parents were in town, the police declined to leave  Elsie
with  her brother, who was an inappropriate chaperone as  he  was
underage and known to drink, and instead drove her home  so  that
she  could  be released to her parents.  Even given  that  Elsies
parents  had requested that the police detain her to control  her
and  even  assuming that the officers understood  Elsies  cryptic
remark about her brother to hint at suicide, there is no shred of
evidence  suggesting that the polices decision not to detain  her
was  in  bad  faith.   Without any showing of  capriciousness  or
maliciousness, the Logusaks have failed to show that  Ferris  and
Gusts decision was not an exercise of discretion.
          We  turn now to the Sheldon inquiry: whether the police
acted  reasonably in performing this discretionary  act.   Ferris
and  Gust  relied on a reasonable interpretation of AS  47.37.170
that prohibited placing minors in jail and encouraged the release
of intoxicated minors to their parents.  They also acted pursuant
to  AS 12.25.030(b)(3)(B), which as noted above provides that the
police  must  release  a minor who has consumed  alcohol  to  her
parents  unless  there is a lawful reason for further  detention.
The officers followed the law and placed Elsie in the care of her
parents, who would presumably be better equipped to handle Elsie.
This  situation thus presents an even clearer case  for  immunity
than  Sheldon where there were no applicable laws regulating  the
VPOs behavior.
          The   City  of  Togiak,  therefore,  is  immune   under
discretionary function official immunity.
V.   CONCLUSION
          Because   the  police  officers  acted  reasonably   in
          releasing Elsie to her parents and thus did not breach their duty
to  protect her, and because the police officers were immune from
suit  for their discretionary acts, we AFFIRM the superior courts
award of summary judgment to the City of Togiak.

_______________________________
     1     See  Perkins v. Doyon Universal Servs., LLC, 151  P.3d
413, 415-16 (Alaska 2006).

     2     Brannon  v.  Continental Cas. Co., 137 P.3d  280,  284
(Alaska 2006).

     3    Perkins, 151 P.3d at 415.

     4     Div. of Corr., Dept of Health & Soc. Servs. v. Neakok,
721  P.2d 1121, 1125 (Alaska 1986) (quoting Davidson v.  City  of
Westminster, 649 P.2d 894, 896 (Cal. 1982)).

     5     See  DeNardo v. Corneloup, 163 P.3d 956,  961  (Alaska
2007).

     6      See  Joseph v. State, 26 P.3d 459, 466 (Alaska 2001);
Kanayurak v. N.  Slope Borough, 677 P.2d 893, 897 (Alaska  1984);
Wilson v. City of Kotzebue, 627 P.2d 623, 628 (Alaska 1981).

     7     Neakok,  721 P.2d at 1126-27, partially  overruled  on
other  grounds  by State v. Cowles, 151 P.3d 353, 363-65  (Alaska
2006).

     8      Compare   AS  12.25.030  with  AS  47.12.250(a)(2)(A)
(general  delinquent  minor detention statute  providing  that  a
police officer may release a minor to her parents if detention is
not necessary to protect the minor or the community).  We examine
the officers actions under AS 12.25.030 rather than AS 47.12.250,
following our practice of giving precedence to specific  statutes
over general statutes.  Petrolane, Inc. v. Robles, 154 P.3d 1014,
1034 (Alaska 2007) (internal citations omitted) (quoting City  of
Cordova  v.  Medicaid Rate Commn, Dept of Health &  Soc.  Servs.,
State  of Alaska, 789 P.2d 346, 352 (Alaska 1990)) (It is a maxim
of construction that specific statutes should be given precedence
over more general ones.).

     9    661 P.2d 167 (Alaska 1983).

     10    Id. at 168 (quoting Restatement (Second) of Torts  286
(1965)).

     11    Although the evidence shows that Elsie was intoxicated,
she   was  not  incapacitated  by  alcohol  as  defined   by   AS
47.37.270(11).  AS 47.37.270(11) provides that  incapacitated  by
alcohol  means a person who, as a result of alcohol or drugs,  is
unconscious or whose judgment is otherwise so impaired  that  the
person   (A)  is  incapable  of  realizing  and  making  rational
decisions  with  respect to the need for  treatment  and  (B)  is
unable  to  take  care of the persons basic  safety  or  personal
needs, including food, clothing, shelter, or medical care.   When
the  police officers released Elsie to her parents, she  was  not
unconscious  and did not otherwise meet the statutory  definition
of incapacitated by alcohol.

     12    677 P.2d 893, 897-99 (Alaska 1984).

     13    Id. at 897.

     14     Pauley  v. Anchorage Sch. Dist., 31 P.3d  1284,  1286
(Alaska 2001).

     15    Id.

     16    Id. (quoting Aspen Exploration Corp. v. Sheffield, 739
P.2d 150, 158 (Alaska 1987)).

     17     Id.  at 1285 (quoting Samaniego v. City of Kodiak,  2
P.3d 78, 83 (Alaska 2000)).

     18    Id. at 1285-86.

     19    Id. at 1286.

     20    178 P.3d 459 (Alaska 2008).

     21     Id.  at  463 (citing Saucier v. Katz,  533  U.S.  194
(2001)).

     22     Id.  (citing Saucier, 533 U.S. at 205)  (emphasis  in
original).

     23    Id. at 466-67.

     24    Id. at 462.

     25    Id. at 467.

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