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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Steward v. State (4/11/2014) sp-6892

Steward v. State (4/11/2014) sp-6892

         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, email  


SHIRLEY A. STEWARD, Personal                               )  

Representative of the Estate of LEAH F.                    )     Supreme Court No. S-14476  

DAVIS, and WARREN DAVIS,                                   )  

                                                           )     Superior Court No. 4FA-07-02278 CI  

                            Appellants,                    )  

                                                           )     O P I N I O N  

         v.                                                )  


STATE OF ALASKA,                                           )     No. 6892 - April 11, 2014  



                            Appellee.                      )  


                  Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  



                  Fourth Judicial District, Fairbanks, Michael A. MacDonald,  



                  Appearances:    Allen  Vacura,  Stepovich  &  Vacura  Law  

                   Office,   Fairbanks,         for    Appellants.      Dario   Borghesan,  

                  Assistant  Attorney  General,  Anchorage,  and  Michael  C.  


                   Geraghty, Attorney General, Juneau, for Appellee.  

                  Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.  

                  WINFREE, Justice.  


                  Following a fatal car crash, the estate and the surviving spouse of the car's  


driver sued the State of Alaska under separate negligence theories.  The superior court  

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granted the State summary judgment on one claim, and a jury found in the State's favor  

on the remaining claim.  The estate and the surviving spouse appeal.  Because we see no  

prejudicial error, we affirm the superior court's judgment.  



                   Leah Davis was driving north on the Richardson Highway.  Near milepost  


330, a southbound United States Postal Service vehicle crossed the centerline and struck  


Davis's car.  The crash caused Davis's car to skid across the southbound lane, cross the  


shoulder, and enter the Tanana River.  The car submerged and Davis drowned.  Alaska  

State Trooper Joseph Harris led the accident investigation at the site.  

                   There was no guardrail at milepost 330 at the time of the accident.  During  


a  1994  erosion  control  project  along  the  highway  and  Tanana  River,  the  Alaska  

Department of Transportation and Public Facilities removed a then-existing guardrail.  

The project's study report concluded that the redesigned highway shoulder and riverbank  


would "provide adequate clear zone width to eliminate [the] guardrail."  The study also  


stated that "the engineer will make a field decision" regarding the erosion control design  

to be used and that the "existing guardrail [is] to be removed."  The State did not replace  

the guardrail.  

                   Shirley Steward, the personal representative of Davis's estate, and Warren  

                                                                                            1  Steward alleged the  


Davis, Davis's surviving spouse, filed a lawsuit against the State.  

State negligently failed to reinstall a guardrail at milepost 330 and negligently failed to  


construct and maintain an adequate clear zone - the area alongside a highway for use  


by errant vehicles - in lieu of a guardrail.  

                   The superior court granted summary judgment to the State on the guardrail  

          1        We hereafter use "Steward" to refer to both the personal representative and  

Warren Davis.  

                                                           -2-                                                        6892  

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claim,  determining  that  removing  the  guardrail  was  a  policy  decision.    The  court  

concluded that the policy decision entitled the State to discretionary function immunity.   

But the superior court denied summary judgment on the clear zone claim.  


                   The superior court held a trial on the remaining claim.  During the earlier  

summary  judgment  proceedings,  the  State  had  submitted  an  affidavit  from  Trooper  


Harris asserting that based on his observation of the tire tracks at the accident scene,  


Davis's car went airborne 15 feet into the clear zone, hit the ground once, and then  


bounced into the river.  Steward called Trooper Harris to testify during her case in chief.  

Over Steward's objection, the superior court excluded Steward's expert witness from the  

courtroom  during  Trooper  Harris's  testimony.    The  superior  court  concluded  that  


Trooper Harris was not providing expert testimony and that the presence of Steward's  

expert would not help Steward's case.  

                   In response to questioning from Steward's attorney, Trooper Harris testified  

that "the vehicle had to have gone airborne" before ending up in the river.  At the end of  

the  trial,  the  jury  returned  a  verdict  for  the  State,  concluding  that  the  State  acted  

negligently but that the negligence was not a substantial factor causing Davis's death.  

                    Steward appeals, arguing the superior court erred by:  (1) granting summary  


judgment to the State on the guardrail claim based on discretionary function immunity;  


(2)  allowing  Trooper  Harris  to  testify  at  trial  that  Davis's  car  went  airborne  before  


landing in the river; and (3) excluding Steward's expert witness from the courtroom  

during Trooper Harris's testimony.  


                   The applicability of discretionary function immunity for a governmental act  

                                                            -3-                                                      6892

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is a question of law that we review de novo.   Grants of summary judgment are also  


reviewed de novo.   "We review a trial court's decision to admit or exclude evidence,  


                                                                                                    Trial court decisions  

including expert witness testimony, for abuse of discretion . . . ." 

to exclude witnesses also are reviewed for abuse of discretion.5  



          A.	       The Superior Court Did Not Err By Granting Summary Judgment To  

                    The State Under Discretionary Function Immunity.  

                    Although "immunity from suit is a fundamental aspect of the sovereignty"  



of  states,   Alaska  "abolished  the  common  law  doctrine  of  sovereign  immunity  by  



statute."   Alaska Statute 09.50.250 partially waives the State's immunity from lawsuits  


by allowing plaintiffs to bring contract, quasi-contract, or tort claims against the State.  

But  the  Alaska  Legislature  provided  an  exception,  retaining  the  State's  sovereign  

immunity in tort cases where the action is "based upon the exercise or performance or  


the failure to exercise or perform a discretionary function or duty on the part of a state  

          2         Kiokun v. State, Dep't of Pub. Safety , 74 P.3d 209, 212 (Alaska 2003)  

(citing Angnabooguk v. State, Dep't of Natural Res ., 26 P.3d 447 (Alaska 2001); Kooly  


v. State, 958 P.2d 1106, 1107 (Alaska 1998)).  

          3         Kalenka v. Infinity Ins. Cos ., 262 P.3d 602, 607 (Alaska 2011); Nielson v.  

Benton , 903 P.2d 1049, 1052 (Alaska 1995) (citing Tongass Sport Fishing Ass'n v. State,  


866 P.2d 1314, 1317 (Alaska 1994)).  

          4         Cartee  v.  Cartee,  239  P.3d  707,  721  (Alaska  2010)  (citing  Nelson  v.  

Progressive Corp ., 976 P.2d 859, 865 n.9 (Alaska 1999)).   

          5         State,  Dep't  of  Corr.  v.  Johnson,  2  P.3d  56,  59  (Alaska  2000)  (citing  


Fairbanks N. Star Borough v. Lakeview Enters., Inc., 897 P.2d 47, 58 (Alaska 1995)).  

          6         Alden v. Maine , 527 U.S. 706, 713 (1999).  



                    Estate of Arrowwood ex rel. Loeb v. State , 894 P.2d 642, 644 (Alaska 1995)  

(citing AS 09.50.250).  

                                                               -4-	                                                        6892

----------------------- Page 5-----------------------



agency or an employee of the state, whether or not the discretion involved is abused." 

We have called this narrow retention of sovereign immunity the "discretionary function  



                      Discretionary function immunity "seeks to ensure that private citizens do  


not interfere with or inhibit the governing process by challenging through private tort  

actions basic governmental policy decisions."10  When determining whether discretionary  


immunity applies to a specific act, "we distinguish between decisions that involve basic  


planning or policy and those that are merely operational in the sense that they implement  

                                          11   Planning decisions "fall under the exception because they  


plans or carry out policy."  

involve  formulation  of  basic  policy"  including  consideration  of  financial,  political,  



economic,  or  social  effects  of  the  policy.                           "Normal  day-by-day  operations  of  the  


government"  are  not  planning  decisions  and  are  not  entitled  to  immunity  under  the  

discretionary function exception.13  

                      We have explained that "the decision of whether or not to install a guardrail  

           8          AS 09.50.250(1).  

           9          State v. Abbott, 498 P.2d 712, 716 (Alaska 1972).  

           10        Japan Air Lines Co. v. State , 628 P.2d 934, 936 (Alaska 1981) (citing  

Adams v. State , 555 P.2d 235, 244 (Alaska 1976)).  

           11         Guerrero ex rel. Guerrero v. Alaska Hous. Fin. Corp                                  ., 123 P.3d 966, 976   

(Alaska 2005) (citing Johnson v. State , 636 P.2d 47, 64 (Alaska 1981)).  

           12        Estate of Arrowwood , 894 P.2d at 644-45; Abbott , 498 P.2d at 720.  

           13        Abbott , 498 P.2d at 720 (quoting Swanson v. United States, 229 F.Supp.  

217, 220 (N.D. Cal. 1964)).  

                                                                   -5-                                                             6892

----------------------- Page 6-----------------------



is  a  discretionary  act  covered  by  AS  09.50.250."                              Whether  to  install  a  guardrail  

"involve[s] planning, an assessment of competing priorities, and a weighing of budgetary  


considerations."             In Industrial Indemnity Co. v. State , we affirmed a grant of summary  


judgment to the State for its decision not to build a guardrail, explaining that the decision  

was "one of policy" and that "an affirmative decision to go ahead with the installation  


had to be made at the discretionary level in order to advance the chain of events to the  



operational stage."              We later applied that precedent in  Wells v. State to affirm a grant  


of summary judgment on a motorist's negligence claims regarding the State's failure to  

install a guardrail.17  


                     Steward asserts that the decision not to install a guardrail is not always a  

planning decision; the decision could be made at the operational stage, at which point it  


is not a discretionary function.  She attempts to distinguish this case from  Wells and  

Industrial Indemnity in this sense, contending that the State's guardrail decision was  


made during the implementation and operational stage of construction, not the planning  



stage.       But Steward fails to point to any facts in the record supporting that argument.  

           14        Wells v. State, 46 P.3d 967, 969 (Alaska 2002); accord  Indus. Indem. Co.   

v. State, 669 P.2d 561, 566 (Alaska 1983).   

           15       Indus. Indem. , 669 P.2d at 564.  

           16       Id. at 563.  

           17        46 P.3d at 969.  



                     Steward argues the State has not met its burden of showing its decision to  


remove the guardrail was made at the planning stage and, therefore, the State's decision  

is not entitled to discretionary function immunity.  She suggests the State must explain  

"whom, when, and how the discretionary decision was made and the details of that  

decision" to meet its burden.  But we rejected the argument that the State must "show  


how  an  individual  decision  was  made"  to  be  entitled  to  discretionary  immunity  in  


                                                                -6-                                                         6892

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And  the  record  indicates  the  opposite  conclusion:                      the  decision  not  to  replace  the  


guardrail was made in the design study and approval documents.  The State decided in  

those documents that the erosion control design would "provide adequate clear zone  

width to eliminate guardrail," and the "existing guardrail [is] to be removed."  These  

statements  indicate  the  State's  decision  to  eliminate  the  guardrail  was  made  at  the  

planning stage and is thus entitled to discretionary function immunity.  Therefore, the  

superior court's grant of summary judgment on this claim is affirmed.  


          B.	      The  Superior  Court  Did  Not  Err  By  Allowing  Trooper Harris To  

                   Testify About The Crash.  

                   During the summary judgment proceedings, Steward submitted an affidavit  

from an expert witness stating that the clear zone was too narrow and rough for safe  


vehicle travel.  With its summary judgment reply, the State attached Trooper Harris's  

affidavit asserting that Davis's vehicle went airborne and thus the composition of the  


clear zone did not matter.  Steward submitted a surreply with an affidavit from John  

Shover, Steward's accident reconstruction expert, contesting Trooper Harris's conclusion  

that Davis's vehicle went airborne.  

                   After the superior court denied summary judgment on the negligence claims  


regarding the clear  zone, the case went to a jury trial.  As part of her case in chief,  

Steward called Trooper Harris to testify.  Steward requested the court allow Shover to  

          18       (...continued)  

Industrial Indemnity .   669 P.2d at 566 n.11; see also  State, Dep't of Transp. & Pub.  


Facilities v. Sanders , 944 P.2d 453, 458 n.5 (Alaska 1997) ("[S]ome jurisdictions require  


that a state or local governmental unit seeking to obtain the protection of discretionary  

function immunity show that a considered policy evaluation actually took place.  Alaska  

does not require such a showing." (alteration in original) (citations and internal quotation  


marks omitted)).  At most, the State may bear the burden of establishing its decision was  


made at the planning stage.  We do not need to decide if the State bears such a burden  

because, even if it does, the State met that burden in this case.  

                                                           -7-	                                                    6892

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remain  in  the  courtroom  during  Trooper  Harris's  testimony,  arguing  that  because  

Trooper Harris was a hybrid witness Shover should be allowed to stay and hear the  


testimony.  The superior court concluded that Trooper Harris was not providing expert  


opinion, simply a "description of what he saw at the scene" and "lay opinion of a police  


officer."    The  court  ruled  that  Shover  would  be  barred  from  the  courtroom  during  

Trooper Harris's testimony.  

                    When questioning Trooper Harris about Davis's vehicle tire tracks ending  


15 feet into the clear zone, Steward's attorney asked, "[a]nd then what did the car do in  


your  .  .  .  opinion?"         Trooper  Harris  responded  that  "the  vehicle  had  to  have  gone  

airborne."  Steward's attorney continued questioning Trooper Harris and then called  


Shover  as  the  next  witness  to  give  his  expert  testimony  about  the  accident  and  


                    On  appeal,  Steward  contends  that  Trooper  Harris's   testimony  was  

inadmissible because Trooper Harris was not qualified to provide expert opinions, did  


not have a sufficient factual basis to form an opinion about the crash, and was improperly  


characterized  as  a  lay  witness.    But  Steward  did  not  object  to  the  superior  court's  


characterization of Trooper Harris as a lay witness at trial.  Steward went on to elicit  



Trooper Harris's testimony during her case-in-chief and did not object to its substance. 

Because Steward failed to object to Trooper Harris's testimony in the superior court, we  


conclude she waived her right to appeal the testimony's admissibility.20  

          19        Steward asserts that she "objected to the testimony of Trooper Harris -  

seeking to exclude that testimony at trial."  While Steward twice argued to the superior  


court that Trooper Harris was an expert witness, she did so solely to justify use of her  

own expert, Shover.  In neither situation did Steward ask to exclude Trooper Harris's  


testimony or argue that allowing him to testify as a lay witness would be error.  

          20        See Sherbahn v. Kerkove, 987 P.2d 195, 199 (Alaska 1999) (citing Alaska  


                                                              -8-                                                        6892

----------------------- Page 9-----------------------


          C.	      The Superior Court's Error In Excluding Steward's Expert Witness  

                   During Trooper Harris's Testimony Was Harmless.  

                   Steward's  final  argument  is  that  the  superior  court  erred  by  excluding  

Shover from the courtroom during Trooper Harris's testimony.  Steward argues that  

Shover should have been allowed to hear Trooper Harris's testimony to help present  


rebuttal testimony and respond to points made by Trooper Harris.  Although we agree  

with Steward that the superior court's exclusion of Shover from the courtroom during  


Trooper Harris's testimony was error, because Trooper Harris's trial testimony was the  


same  as  his  earlier  affidavit  statements,  which  had  been  reviewed  by  Shover,  we  

conclude that the error was harmless.21  

                   Alaska Evidence Rule 615 provides that a court may order the exclusion  


of a witness from the courtroom during other testimony at the request of any party.  The  


rule, however, contains an exception for witnesses "whose presence is shown by a party  


to be important to the presentation of the party's cause."                               Thus, the court may not  

exclude a witness, such as an "expert needed to advise counsel in the management of  

litigation," if that witness plays an important role in the party's presentation of its case.23  

          20	      (...continued)  

R. Evid. 103(a)(1); Gilbert v. State, 598 P.2d 87, 92 (Alaska 1979) ("[T]he basic rule is  


that failure to object to offered evidence waives the objection.")).  

          21       See Jones v. Bowie Indus., Inc., 282 P.3d 316, 328 (Alaska 2012) ("Even  


[if]  admission  of  evidence  is  erroneous,  we  will  reverse  only  if  the  error  was  not  


harmless." (citing Brandner v. Hudson , 171 P.3d 83, 87 (Alaska 2007))).  

          22       Alaska R. Evid. 615(3).  



                   Alaska R. Evid. 615 commentary.  The Ninth Circuit has noted that "[i]n  


many circumstances, a potential expert witness will be an 'essential party' within the  

meaning of [Federal Evidence] Rule 615(3)."   U.S. v. Seschillie, 310 F.3d 1208, 1213  

(9th Cir. 2002).   

                                                             -9-	                                                     6892

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                    Here it appears that Shover's presence was "important to the presentation"  


of Steward's case and there was no countervailing reason for the exclusion.  Shover was  


the next witness to be called at trial and was prepared to offer expert testimony about the  


accident.  Shover should have been allowed to hear Trooper Harris's testimony to verify  

Trooper  Harris's  testimony  and  finalize  any  opinions  calling  into  question  Trooper  

Harris's conclusions about the accident.   


                    But  even  though  excluding  Shover  was  error,  the  error  was  harmless.  


Shover        already      had      read     Trooper        Harris's       affidavit      and     was      familiar       with  

Trooper   Harris's   observations   and   conclusions.      Steward   has   not   shown   that  

Trooper Harris's testimony was different from his affidavit.  Moreover, Steward had the  

opportunity to question Shover about Trooper Harris's testimony, allowing Shover to  


rebut anything that Trooper Harris said.  Therefore, Steward has not shown that Shover's  


exclusion from the courtroom during Trooper Harris's testimony actually prejudiced  


Steward's case, and there is no basis to reverse the judgment.                                 

V.        CONCLUSION  

                    Based on the foregoing, we AFFIRM the superior court's judgment.  



                    Barton v. N. Slope Borough Sch. Dist , 268 P.3d 346, 353 (Alaska 2012)  


("[A] party must show that the error was harmful or prejudicial before we will reverse  

the trial court.").  

                                                             -10-                                                           6892  

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