Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lane v. City & Borough of Juneau (4/27/2018) sp-7238

Lane v. City & Borough of Juneau (4/27/2018) sp-7238

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

JON  GREGORY  LANE,                                              )  

                                                                 )          Supreme  Court  No.  S-16102  

                                Appellant,                       )  


                                                                 )          Superior Court No.  1JU-12-00403 CI  

                      v.                                         )  


                                                                 )         O P I N I O N  


CITY & BOROUGH OF                                                )  



                                                                 )         No. 7238 - April 27, 2018  


                                Appellee.                        )  




                      Appeal from the Superior Court of the State of Alaska, First


                      Judicial District, Juneau, Philip M. Pallenberg, Judge.


                      Appearances:  Jeffrey J. Barber, Barber & Associates, LLC,


                      Anchorage, for Appellant. Michael L. Lessmeier, Lessmeier


                      & Winters, LLC, Juneau, for Appellee.


                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,


                      and Carney, Justices.


                      MAASSEN, Justice.


                      STOWERS, Chief Justice, dissenting in part.



                      A   municipality   kept   a   campground   open   through   the   winter   to  


accommodate the local homeless population.   A campground resident was shot and  


severely injured.   He sued the municipality for damages, arguing primarily that the  


municipality did not do enough to prevent alcohol-related violence at the campground.  

----------------------- Page 2-----------------------

He also argued that the campground's caretaker performed his duties negligently, that  


this negligence precipitated the shooting, and that the municipality was vicariously liable  


for the caretaker's actions.  


                    The superior court granted summary judgment for the municipality on all  


these claims. The court concluded that the municipality could not, under the doctrine of  


discretionary function immunity, be liable for any decision requiring "deliberation" and  


"judgment."  It also concluded that the municipality was not vicariously liable for the  


caretaker's alleged negligence because his challenged actions were outside the scope of  


his employment.  


                    The  shooting  victim  appeals.                    We  conclude  that  the  application  of  


discretionary function immunity to bar some of his claims was error, as they related to  


"operational" rather than "planning" decisions. We also conclude that genuine issues of  


material fact precluded summary judgment on the shooting victim's claims for negligent  


supervision and vicarious liability.  We therefore affirm the superior court's judgment  


in part, reverse it in part, and remand the case for further proceedings.  




          A.        Facts  

                    The City and Borough of Juneau (the City) maintained and operated Thane  


Campground, which in the summer was home to seasonal workers in the fishing and  


tourism industries. The City usually closed the campground for the winter, but in the fall  


of 2009 the City decided to keep it open to accommodate the local homeless population.  


According to Heather Marlow, the City official then in charge of the campground, the  


winter residents included alcoholics, the "chronically unemployed," and "people [who  


                                                               -2-                                                        7238

----------------------- Page 3-----------------------

were not welcome] in homeless shelters" because of "previous incidents or violence."  


                    Marlow typically hired a caretaker to stay at the campground through the  


summer season. The caretaker's duties included keeping records, collecting rental fees,  


performing routine maintenance, and "interact[ing]" with campers.  The caretaker was  


supposed to discourage noisy and disruptive behavior, but this duty stopped short of  


enforcing City ordinances or campground rules. The caretaker had no law-enforcement  


authority,  and  in  the  event  of  violence,  "criminal  activity,"  or  other  "unreasonable  


behavior" he was supposed to call the police rather than intervene.  The caretaker could  


and occasionally did ask troublesome campers to leave the campground, but he could not  


enforce these requests without appealing to City authorities or calling the police.  


                    Marlow hired Gordon Valle to serve as caretaker beginning in the summer  


of 2007.  When the City decided in the fall of 2009 to keep the campground open, Valle  


agreed to stay on through the winter.   Marlow had given  him specific instructions  


regarding the consumption of alcohol at the campground.  Although the campground  


rules expressly prohibited alcohol, Marlow testified it was "an understood premise" that  


Valle could drink in the privacy of his tent and should "turn a blind eye" to "minor"  


drinking by other campers as long as they did not "caus[e] a problem for others."  


                    Jon Lane arrived at the campground in February 2010.  On the evening of  


March 30, Lane and several other campers began drinking beer. Valle, believing he was  


"off the clock," joined the group and contributed money to replenish the beer supply.  


Valle  and  Lane  both  drank  until  they  were  heavily  intoxicated;  Valle  stated  that  


"alcohol . . . took [his] judgment away."  At some point someone noticed that Valle had  


two pistols in his backpack.  Valle testified that "[e]verybody wanted to look at" the  


guns, so he "passed them around." According to Lane, Valle and a camper named Chris  


Barrios took turns shooting (though Valle testified he could not remember whether he  


                                                                -3-                                                         7238

----------------------- Page 4-----------------------

fired a gun that night). Lane testified that Valle was "shooting up in the air and carrying                                                                                                                                                                 


                                           For reasons not clear from the record, an argument erupted between Lane                                                                                                                                                     

and Barrios, who pointed one of Valle's pistols at Lane's head. Valle begged Barrios to                                                                                                                                                                                          

"put the dang [gun] down" and said, "You're going to get me in so much trouble." But                                                                                                                                                                                       

Barrios told him to "go while you can," and Valle ran away.                                                                                                                                         Barrios then shot Lane in                                                    

the face.                    Lane was seriously injured but survived.                                                                                                

                      B.                   Proceedings  

                                           Lane   sued   the   City   for   damages   under   vaguely   articulated   theories   of  


negligence and vicarious liability.                                                                                                                                                                                                                             

                                                                                                                 He alleged, among other things, that the City created  


an unreasonable and foreseeable risk of violence at the campground and then failed to  


warn him of the risk or otherwise protect him from it.   He alleged that the City was  


negligent in hiring and supervising Valle.   He also alleged that Valle himself acted  


negligently or recklessly, and that the City was vicariously liable for Valle's conduct.  


                                           The City moved for summary judgment. It argued that it was immune from  


liability under the discretionary function doctrine because its  decisions to keep the  


campground open for the winter and to hire a particular individual as caretaker were  


"discretionary" actions involving "judgment" and "deliberation." The City argued in the  


alternative that it could not be held liable for the consequences of Barrios's intentional  


criminal act, and that Lane could not maintain a premises liability (or "failure to warn")  

                      1                    Lane's complaint named four defendants: the City, Valle, the owner of the                                                                                                                                                          

land on which the campground was located, and the landowner's agent.                                                                                                                                                                   Claims against   

the latter two defendants were dismissed by stipulation.                                                                                                                            The City brought a third-party                                

claim against Barrios, but neither he nor Valle appeared, and the superior court entered                                                                                                                                                                       

default judgments against them both.                                                                                     Only Lane's claims against the City remained in                                                                                                         

contention on summary judgment.                                               

                                                                                                                                       -4-                                                                                                                             7238

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

claim because he was "solely responsible for his own safety."                                                                                                                                                                                   Finally, the City argued                                           

that Valle was an independent contractor rather than a City employee, and that the City                                                                                                                                                                                                                                      

could not be liable for his actions on the evening of the shooting because they were                                                                                                                                                                                                                                      

outside the scope of his contractual duties. Lane argued in opposition that discretionary                                                                                                                                                                                                  

function immunity did not apply to "operational" conduct like Marlow's supervision of                                                                                                                                                                                                                                                 

Valle, that Valle was a City employee, and that the premises liability claims had merit   

because alcohol use at the campground created a foreseeable risk of violence.                                                                                                                                                                                           

                                                    The superior court agreed with the City and granted summary judgment on                                                                                                                                                                                                          

all  of Lane's claims.                                                                 Lane appeals, making two principal arguments:                                                                                                                                                         (1) that the                        

 superior court construed the City's immunity under AS 09.65.070(d)(2) too broadly; and                                                                                                                                                                                                                                          

(2)  that the court erred when it concluded that Valle was not acting within the scope of                                                                                                                                                                                                                                             

his employment at the time of the shooting.                                                                                         

III.                      STANDARD OF REVIEW                                                      


                                                    "We review grants of summary judgment de novo."                                                                                                                                                                                                             

                                                                                                                                                                                                                                                                        The party seeking  


 summary judgment bears the initial burden of proving that there are no genuine issues  



of material fact and that it is entitled to judgment as a matter of law.                                                                                                                                                                                                "Once the moving  


party has made that showing, the burden shifts to the non-moving party 'to set forth  


 specific facts showing that he could produce evidence reasonably tending to dispute or  


contradict the movant's evidence and thus demonstrate that a material issue of fact  

                          2                         Christensen v. Alaska Sales &Serv., Inc.                                                                                                                  , 335 P.3d 514, 516 (Alaska 2014)                                                                         

(citing  Hurn v. Greenway                                                                           , 293 P.3d 480, 483 (Alaska 2013)).                                                                                                          

                          3                        Id. at 517 (quoting Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751,  


760 n.25 (Alaska 2008)).  


                                                                                                                                                                  -5-                                                                                                                                                      7238

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

                 4                                                                                                                                         5  

exists.' "           Alaska has a "lenient standard for withstanding summary judgment,"                                                                      and we   

will affirm a grant of summary judgment only when "no reasonable person could discern                                                                         


a genuine factual dispute on a material issue."                                                

IV.	         DISCUSSION  


             A.	           "Discretionary   Function"   Municipal   Immunity   Is   Provided   By  


                           AS 09.65.070.  


                           1.	          The   City   enjoys   immunity   under   AS   09.65.070(d)(2) for  


                                        "planning"                  decisions;               it     does         not        enjoy           immunity                 for  


                                        "operational" acts.  


                           Alaska Statute 09.65.070(d)(2) provides that "[a]n action for damages may  


not be brought against a municipality or any of its . . . employees if the claim . . . is based  


upon the exercise or performance" of "a discretionary function or duty."  The superior  


court dismissed several of Lane's claims against the City because it concluded that this  


"discretionary function" immunity extends to any action requiring municipal employees  


to exercise "personal deliberation" and "judgment," relying on Pauley v. Anchorage  



School District.  


                           However, a municipality's immunity under AS09.65.070(d)(2)isdifferent  


from, and narrower than, a municipal employee's immunity under the same statute and  

             4            Id.  (quoting  State, Dep't of Highways v. Green                                               , 586 P.2d 595, 606 n.32         

(Alaska 1978)).   

             5            Id. at 520 (quoting Shaffer v. Bellows, 260 P.3d 1064, 1069 (Alaska 2011)).  


             6            Id.  (citing  Yurioff v. Am. Honda Motor Co., 803 P.2d 386, 389 (Alaska  


 1990); Semlek v. Nat'l Bank of Alaska, 458 P.2d 1003, 1007 (Alaska 1969); Isler v.  


Jensen, 382 P.2d 901, 902 (Alaska 1963)).  


             7             3l P.3d 1284, 1285 (Alaska 2001).  


                                                                                   -6-	                                                                          7238

----------------------- Page 7-----------------------


in the same circumstances.                                "Discretionary" has a different meaning in the two different                                            

contexts.    While municipal employees enjoy personal or "official" immunity for any                                                                                        

                                                                                                          9   municipalities  themselves  enjoy  

action  involving   "deliberation"   and   "judgment,"                                                                                                                 

immunity only for "planning" decisions; they remain potentially liable for "operational"  


decisions,  that  is,  those  which  do  not  involve  "policy  considerations"  and  which  


comprise the "day-by-day operation[] of the [municipal] government."10   Because some  


of our past decisions do not clearly distinguish between these two different yet closely  


related forms of discretionary function immunity, we take this opportunity to clarify the  


scope of municipal immunity under AS 09.65.070(d)(2).  We begin with the history of  


the statute.  


                            The Territory of Alaska had a statute waiving municipal immunity that  


continued after statehood in amended form.   Without qualification or exception, the  


statute  recognized  tort  claims  "against  any  incorporated  town  .  .  .  in  its  corporate  


                       11    We interpreted this statutory waiver broadly, holding, for instance, that  


                                                                                                                                                   12  And we drew  

municipalities could be held liable for the negligence of their firefighters.                                                                                             


              8             Compare Gates v. City of Tenakee Springs                                                   , 822 P.2d 455, 459 (Alaska                 

 1991) (discussing municipality's liability),                                           with Samaniego v. City of Kodiak                                     , 2 P.3d 78,        

83 & n.11 (Alaska 2000) (discussing municipal employee's liability).                                                          

              9             Samaniego, 2 P.3d at 83.  


              10            State v. Abbott, 498 P.2d 712, 720 (Alaska 1972) (quoting Swanson v.  


 United States, 229 F. Supp. 217, 220 (N.D. Cal. 1964)); Urethane Specialities, Inc. v.  


City of Valdez, 620 P.2d 683, 687-88 (Alaska 1980).  


              11            City of Fairbanks v. Schaible, 375 P.2d 201, 207 (Alaska 1962) (citation  


              12           Id. at 208.  


                                                                                       -7-                                                                               7238

----------------------- Page 8-----------------------


no distinction between "governmental" or "proprietary" functions.                                                                                          Put simply, Alaska         


municipalities "did not enjoy any immunity from tort liability" during this time.                                                                                                           

                               This law remained in effect until 1977, when the legislature, responding to  


concerns that municipalities' ability to govern was hampered by threats of tort liability,  


partiallyrestored municipal immunity.15  The1977 enactmentsincludedthelanguagenow  


codified at AS 09.65.070(d)(2), granting immunity for "discretionary" functions.16                                                                                                            The  


current municipalimmunitystatutecloselyresembles theAlaskaTort Claims Act,17 which  


protects the State from certain types of damages claims. Both statutes grant immunity for  


"discretionary"  governmental  functions;  a  difference  is  that  the  Tort  Claims  Act  


immunizes only the governmental entity (the State), while the municipal statute includes  


within its scope the "agents, officers, or employees" of a municipality.18                                                                                              For the State,  


               13             Id.  

               14              Wilson v. Municipality of Anchorage                                                 , 669 P.2d 569, 571 (Alaska 1983).                               

               15             See   id.    at    571   n.4   ("AS    09.65.070    was    .    .    .    amended    to    confer  

immunity . . . for discretionary functions." (citing ch. 37,  3, SLA 1977, codified as  


amended at AS 09.65.070(d)(2)));                                              see also J &L Diversified Enters., Inc. v. Municipality                                    

of Anchorage                   , 736 P.2d 349, 352 (Alaska 1987) ("The statute was part of an enactment                                                                       

expanding municipal immunity in 1977 in response to several decisions of this court  


holding cities liable in hotel fires based on their fire inspection programs.").                                                                                               

               16              Wilson, 669 P.2d at 571 n.4.  


               17             See AS 09.50.250(1).  


               18              Compare AS 09.50.250(1) ("A person . . . may bring an action against the  


state . . . . However, an action may not be brought if the claim . . . is an action for tort and  


is based upon . . . the exercise or performance [of] . . . 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."), with AS 09.65.070(d)(2) ("An action for damages may not be  



                                                                                                 -8-                                                                                      7238

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

official immunity for individuals came by way of the courts' recognition of the doctrine                                                     


as an addition to the statutory protection for                                      the governmental entity,                                          

                                                                                                                                     whereas for  


municipalities, bothimmunity for theentity and immunity for theindividual areaddressed  


expressly by the immunity statute.  


                        Under the Tort Claims Act, the State's immunity does not extend to all  

                                                                                                                                         20   In State  


discretionary actions, at least as the term "discretionary" is commonly defined. 

v. Abbott we observed that the analogous discretionary function exception to the Federal  


Tort  Claims Act had  "been  read  so broadly  on  occasion  . .  .  as to almost reinstate  


complete immunity."21                      We instead favored how the California Supreme Court, among  


others, had explained the exception:   specifically that because "almost any act, even  


driving anail, involves some discretion,"weshould reject "a simply semantic inquiry into  


the meaning" of the word "discretionary" and instead focus "on the policy behind the  


discretionary immunity doctrine for guidance in determining whether a given act was  


            18          (...continued)  


brought against a municipality or any of its agents, offices, or employees if the claim . . .  


is based upon the exercise or performance [of] . . . a discretionary function or duty by a  


municipality or its agents, officers, or employees, whether or not the discretion involved  


is abused.").  

            19          See Bridges  v. Alaska  Hous.  Auth., 375  P.2d  696,  702  (Alaska 1962)  


(applying "the well recognized rule that affords [immunity fromcivil liability]to a public  


officer, acting within the scope of his official duties, for damages caused by a mistake  


by  him  in  the  exercise  of  judgment  or  discretion,  or  because  of  an  erroneous  


interpretation and application of the law").  


            20          State v. Abbott, 498 P.2d 712, 720-22 (Alaska 1972).  


            21         Id. at 717 (citing Dalehite v. United States, 346 U.S. 15 (1953)).  


                                                                           -9-                                                                   7238

----------------------- Page 10-----------------------


discretionary or ministerial."                            We approved of Justice Jackson's dissenting view - in                                                

a case involving the Federal Tort Claims Act - that "there is no good reason to immunize                                                        

the   Government   or   its   officers   from   responsibility   for   their   acts,  if   done   without  

                                                                           23   Balancing the policy goals of the Tort Claims  

appropriate care for the safety of others."                                                                                                           

Act  against  our  concern  that  a  literal  interpretation  would  excuse  any  form  of  


governmental  carelessness,  we  concluded  that  the  State's  planning  functions  enjoy  


immunity  under  the  Act  while  its  operational  functions  do  not.24                                                        And  because  the  


municipal tort claims statute, AS 09.65.070(d)(2), is analogous to the Tort Claims Act at  


AS  09.50.250(1),  we  have  concluded  that  the  distinction  between  planning  and  


operational functions applies in the municipal context as well.25  


                         We  have  explained  that  planning  decisions  generally  involve  "the  


                                                       26  while operational decisions either leave "no room for  

formulation of basic policy,"                                                                                                                                


discretion  or  involve  only  discretion  free  from  policy  considerations."27                                                                This  test  


                                                                                                 28      There  is  often  no  bright-line  

admittedly  requires  "delicate  judgment"  to  apply.                                                                                        


            22          Id.  at  720  (citing  Johnson  v.  State,  447  P.2d  352,  360  (Cal.   1968)).  

            23          Id.  at  718  (quoting  Dalehite,  346  U.S.  at  60  (Jackson,  J.,  dissenting)).   

            24          Id.  at  721.  

            25           Urethane  Specialties,  Inc.  v.  City  of  Valdez,  620  P.2d  683,  687-89  (Alaska  


            26           R.E. v.  State,  878 P.2d   1341,   1349 (Alaska 1994) (quoting  Indus. Indem.  

Co.  v.  State,  669  P.2d  561,  563  (Alaska   1983)).  

            27          Id.  (citation  omitted).  

            28          Abbott , 498 P.2d at  721  (citing  Johnson  v.  State,  447  P.2d  352,  360 (Cal.  


                                                                             -10-                                                                      7238

----------------------- Page 11-----------------------


distinctionbetween                       "planning"and"operation."                                     Courtsmust thereforeinquirecarefully                          

into "the considerations that enter into" a government decision, and "appreciat[e] . . . the                                                                                    

                                                                                                                                                      30        But  while  

limitations    on    [a]    court's    ability    to    reexamine"    executive    action.                                                                               

policymaking is an immune governmental function, the implementation or execution of  


policy is not; the government remains potentially liable for mistakes in its "normal day- 


by-day operations."31  For example, "[o]nce the basic decision to maintain [a] highway  


in a safe condition throughout the winter is reached, the [S]tate" does not have "discretion  


to do so negligently."32  


                            Municipal employees enjoy a different form of personal immunity under  


AS 09.65.070(d)(2). We have observed that the statute, in extending immunity to agents,  


officers, or employees, establishes "a type of official immunity."33                                                                               And this official  


                                                                                                                                                                        34  Both  

immunity is distinct fromthe sovereign immunity enjoyed by government entities.                                                                                               


forms of immunity employ the term "discretionary function," but "discretionary" carries  


              29            See id.        ("In drawing the line between the immune 'discretionary' decision                                                        

and the unprotected ministerial act we recognize both the difficulty and the limited                                                                                  

function of such distinction.").       

              30            Id. (quoting Johnson, 447 P.2d at 360).  


              31            Id. at 720 (quoting Swanson v. United States, 229 F. Supp. 217, 220 (N.D.  


Cal. 1964)).  


              32            Id. at 722.  


              33            Pauleyv. AnchorageSch. Dist., 31 P.3d 1284, 1285 (Alaska2001); seealso  


Samaniego v. City of Kodiak, 2 P.3d 78, 83 (Alaska 2000).  


              34            See Aspen  Expl.  Corp.  v.  Sheffield, 739  P.2d  150,  155  (Alaska  1987)  


(discussing the differences between sovereign immunity and official immunity).  


                                                                                       -11-                                                                                7238

----------------------- Page 12-----------------------


a different meaning in the two different contexts.                                                                    For purposes of official immunity, we                                            

have defined "discretionary acts" as those requiring personal deliberation and judgment,                                                                                              

and   we   have   contrasted   these   with   "ministerial   acts,"   which   "amount   'only   to   an  

obedience of orders, or the performance of a duty in which the officer is left with no                                                                                                                 

                                                36   Municipal employees enjoy qualified immunity for discretionary  

choice of his own.' "                                                                                                                                                          

actsbutnotfor ministerial acts.37 And becausean individual employee's officialimmunity  


extends to all acts requiring personal deliberation and judgment, official immunity covers  


a  greater  range  of  actions  than  the  discretionary  function  immunity  of  government  


entities;  many  acts  are  not  planning  or  policy  decisions  and  yet  require  personal  


deliberation and judgment on the part of the individual employee.38  


                               The appropriate immunity analysis under  AS 09.65.070(d)(2) therefore  


depends on whether the plaintiff brings a claim against a municipality or against its agent  


or employee.  Either claim is governed by the same words in the same statute, but for the  


claim  against  the  municipality  we  ask  whether  the  challenged  action  carried  out  a  


                35             See id.           

                36             State v. Haley                    , 687 P.2d 305, 316 (Alaska 1984) (quoting W. P                                                                        ROSSER,  

    ANDBOOK OF THE LAW OF TORTS  132 (4th ed. 1971)).                                                                




                               See, e.g., Samaniego, 2 P.3d at 83.  



                               Earth Movers of Fairbanks, Inc. v. State, 691 P.2d 281, 285 n.2 (Alaska  


 1984) (Rabinowitz, J., concurring) (observing that "common-law individual immunity  

should sometimes be broader" than "the State's 'discretionary function' immunity"                                                                                                 


(citing Owen v. City of Independence, 445 U.S. 622 (1980))).  

                                                                                                  -12-                                                                                          7238

----------------------- Page 13-----------------------


planning or operational decision,                                           whereas for the claim against the municipal employee                                           


we ask whether the decision in question involved personal deliberation and judgment.                                                                                                              

                             The difference between sovereign immunity and official immunity "reflects  



the  differing  policy  considerations  which  underlie  the  two  forms  of  immunity."                                                                                                          


Discretionary function immunity for the State and municipalities serves three main policy  


goals:  (1) respecting the separation of powers by limiting judicial oversight of coequal  


branches of government; (2) sparing courts the burden of investigating and evaluating the  


wisdom of executive or legislative decisions; and (3) protecting public resources fromthe  


demands of unlimited government liability.42                                                         We have adopted the view, however, that  


these objectives do not justify absolute immunity, and we have generally adhered to the  


"basic  policy"  that  "when  there  is  negligence,"  liability  should  be  the  "rule"  and  


"immunity . . . the exception."43  


               39            See, e.g.          ,  Adams v. City of Tenakee Springs                                           , 963 P.2d 1047, 1050 & n.3                              

(Alaska 1998);                      Gates v. City of Tenakee Springs                                          , 822 P.2d 455, 459 (Alaska 1991);                               

 Urethane Specialities v. City of Valdez                                             , 620 P.2d 683, 688 (Alaska 1980).                                               

               40            See, e.g., Samaniego, 2 P.2d at 83; see also Aspen, 739 P.2d at 155; Haley,  


687 P.3d at 316.  


               41            Aspen , 739 P.2d at 155.  


               42            State v. Abbott, 498 P.2d 712, 721-22 (Alaska 1972) (citing Osborne M.  


Reynolds, Jr., The Discretionary Function Exception of the Federal Tort Claims Act, 57  


GEO. L.J. 81, 121-23, 128-31 (1968)).                             



                             Id. at 720 (quoting Muskopf v.Corning Hosp. Dist., 359 P.2d 457, 462 (Cal.  


                                                                                           -13-                                                                                    7238

----------------------- Page 14-----------------------

                       Official   immunity  responds   to   different   policy   concerns   and   protects  


different actors and interests.                                                                                                             

                                                     Unlike sovereign discretionary function immunity, which  


insulates  the  policymaking  functions  of  government,  official  discretionary  function  


immunity protects individual government agents from the deterrent effects of personal  

              45      We  accept  the  traditional  justification  for  official  immunity,  which  


acknowledges that the threat of individual liability, along with the attendant burdens of  


litigation  in  an  individual  capacity,  tends  to  "dampen  the  ardor  of  all  but  the  most  


resolute, or the most irresponsible, in the unflinching discharge of their duties."46  


                       But   government   employees   are   not   completely   insulated   from  the  


consequences of their actions.  Official immunity in Alaska is qualified, not absolute; it  


applies only "when discretionary acts within the scope of the official's authority are done  


                                                                               47   And we have not extended the personal  

in good faith and are not malicious or corrupt."                                                                                        


immunity of government employees to automatically immunize their employers, having  


rejected the argument that the individual employee will be unacceptably restrained by the  


                                                                                                 48   We have instead adopted the  

prospect of potential liability on the part of the employer.                                                                                     


           44          See Aspen         , 739 P.2d at 155.         

           45          Compare id.             at 157-58          (discussing   the history                 and purpose of official       

discretionary  function  immunity),  with  Abbott,  498  P.2d  at  717-22  (discussing  the  


purpose of sovereign discretionary function immunity).                                           

           46          Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949).  


           47          Aspen , 739 P.2d at 158 (citing Trimble v. City and Cty. of Denver, 697 P.2d  


716, 729 (Colo. 1985)).  


           48          See Earth Movers of Fairbanks, Inc. v. State, 691 P.2d 281, 282-84 (Alaska  


 1984) (analyzing separately the immunity of the State and the immunity of an individual  


State Trooper); State v. Stanley, 506 P.2d 1284, 1291-92 (Alaska 1973) (analyzing  



                                                                       -14-                                                                 7238

----------------------- Page 15-----------------------

view of the California Supreme Court that if "a deterrent effect takes hold" because of a                                                                                    

government entity's potential liability, "it may be wholesome," because "the potential                                                                       

liability of a governmental entity, to the extent that it affects primary conduct at all,                                                                               

will . . . influence public employees" by "promot[ing] careful work."                                                                     49  

                           Some  other  jurisdictions  follow  a  different  approach,  extending  the  


government employee'sofficial immunity vicariouslyto thegovernmentemployer.50  But  


we have held that what "constitutes a discretionary function for the purposes of official  


immunity" is not the same as "what constitutes a discretionary function for the purposes  


of sovereign immunity."51                                And as discussed above, sovereign immunity and official  


immunity serve different interests and promote different policy objectives; the difference  


             48            (...continued)  


separately the immunity of the State and the immunity of individual State employees);  


Bridges  v.  Alaska  Hous.  Auth.,  375  P.2d  696,  702-03  (Alaska  1962)  (holding  that  


individual government defendants enjoyed official immunity but allowing plaintiffs to  


recover damages from the State).  

             49            Johnson v. State, 447 P.2d 352, 359-60 (Cal. 1968); see Abbott, 489 P.2d  


at  721  (recognizing  Johnson  as  "a  well-reasoned  approach  to  the  problem"  of  


distinguishing between acts that are immune and those that are not).  


             50            See, e.g., Anderson v. Anoka Hennepin Indep. Sch. Dist. 11 , 678 N.W.2d  


651, 663-64 (Minn. 2004) ("Generally, if a public official is found to be immune from  


suit on a particular issue, his or her government employer will be vicariously immune  


from a suit arising from the employee's conduct."); Everitt v. Gen. Elec. Co., 932 A.2d  


831, 847 (N.H. 2007) ("Official immunity, when available to individual public officials,  


generally  may  be  vicariously  extended  to  the  government  entity  employing  the  


individual,  but  it  'is  not  an  automatic  grant.'  "  (quoting  Sletten  v.  Ramsey  Cty.,  


675 N.W.2d 291, 300 (Minn. 2004))).  


             51           Aspen , 739 P.2d at 155.  


                                                                                   -15-                                                                            7238

----------------------- Page 16-----------------------


between the two forms of immunity "is more than mere semantics."                                                                                                                                                                          We therefore   

decline to follow these other jurisdictions, and we reiterate here that a municipality does                                                                                                                                                                              

not automatically share the protection of its employees' personal immunity.                                                                                                                                                                          

                                           Our cases have not always clearly distinguished between the two forms of                                                                                                                                                              

discretionary function immunity.                                                                             In at least two cases cited by the superior court, we                                                                                                           

analyzed claims against government entities using language appropriate to official rather                                                                                                                                                                            

than sovereign immunity, asking whether the actions in question involved "deliberation"                                                                                                                                                   


and "judgment" and concluding that, because they did, the sovereign itself was immune.                                                                                                                                                                                                     

Reframing the analysis is unlikely to have changed the results in those two cases, but we  


disavow their implication that when individual municipal employees act with discretion,  


the municipality is vicariously immune.  


                                           Applying this discussion to this case, we reject the City's argument that the  


challenged   actions   it   took   through   Marlow,   its   employee,   are   immune   under  


AS 09.65.070(d)(2) because she acted with "deliberation" and "judgment."   Official  


immunity could protect her if she were an individual defendant.  But Lane did not sue  


Marlow; he sued the City.  A claim against a municipality or the State raises an issue of  


sovereign  immunity,  and  the  government  defendant  is  immune  only  if  the  claim  


                     52                   Id.   

                     53                   Pauley v. Anchorage Sch. Dist.                                                                          , 31 P.3d 1284, 1285-86 (Alaska 2001)                                                                          


(concluding that because a school principal, when deciding to release a child to a non- 

custodial parent, "acted with deliberation and made a considered judgment, . . . both [the                                                                                                                                                                               


principal] and the . . . [s]chool [d]istrict were protected by qualified immunity"); Mills  


v. Hankla, 297 P.3d 158, 173 (Alaska 2013) (concluding that because a city "act[ed] with  

 'deliberation, decision and judgment,' " its hiring decision "f[ell] within the protection                                                                                                                                                         


of discretionary function official immunity" (quoting Pauley, 31 P.3d at 1285)).  

                                                                                                                                     -16-                                                                                                                            7238

----------------------- Page 17-----------------------


challenges a "planning" decision.                                                         Thus, the superior court should have considered                                                

whether   the   actions   complained   of   -   Marlow's   allegedly   inconsistent  instructions  

regarding alcohol use and her alleged "failure to properly supervise" Valle - were                                                                                                                     

"planning" or "operational," not whether they involved Marlow's "deliberation" and                                                                                                                        

"judgment."   We consider this question next.                                                                   

                                2.	             It was error to dismiss Lane's negligent supervision claim on the                                                                                           

                                                basis of discretionary function immunity.                                                                    

                                To          reiterate,                 "planning"                      generally                  refers             to        policymaking                           while  

"operational"   generally   refers   to   the   implementation   of   policy   or   the   "day-by-day  


operations of the government."                                                                                                                                                                                 

                                                                                   Lane's claims appear to involve both.  According to  


Lane, Marlow gave Valle "mixed messages" about alcohol use at the campground.  The  


campground rules strictly prohibited alcohol, but Marlow testified there was a common  


understanding that Valle could drink in the privacy of his tent and should ignore "minor"  


drinking by others as long as it did not bother anyone else.  Lane argues that Marlow's  


instructions misled and confused Valle, and that as a result Valle did not "intervene" to  


"shut down [the] drinking part[y]" at which Lane was shot.  Lane argues that Marlow's  


allegedly negligent supervision of Valle was "an operational failure" for which the City  


is liable.  


                                Marlow's  decision  to  allow  some  limited  drinking  at  the  campground  


required  her  and  other  City  officials  to  evaluate  different  policy  goals  and  balance  


competing interests, including the campers' safety on the one hand and their personal  

                54               Urethane Specialities v. City of Valdez                                                     , 620 P.2d 683, 688 (Alaska 1980);                                   

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

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


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


                                                                                                     -17-	                                                                                           7238

----------------------- Page 18-----------------------

 autonomy and privacy on the other.                                                                                                              The City also had to consider how operating the                                                                                                                                         

 campground through the winter would affect its limited financial resources.                                                                                                                                                                                                                                       Marlow  

testified that the City decided to keep the campground open in fall 2009 after a property                                                                                                                                                                                                                        

 owner evicted a large number of homeless people who then had "no place to go" because                                                                                                                                                                                                                                 

the local shelters were full. The City Manager decided that keeping the campground open                                                                                                                                                                                                                                            

was "the best of the limited alternatives."                                                                                                                         

                                                     Once   the   City   made   this   decision,   it   was   Marlow's   responsibility   to  

 "manage" the winter campground and its population.                                                                                                                                                                      The City chose not to provide                                                                

 additional services such as security patrols, because "making a meaningful change in the                                                                                                                                                                                                                                                 

 services offered would involve considerable expense at a time when the City had many                                                                                                                                                                                                                                          

 other financial needs."                                                                    Besides, Marlow testified that the City intended to "provide a                                                                                                                                                                                      

housing option for people," not "run[] some sort of detention center."                                                                                                                                                                                                                       She therefore   

 determined that strict prohibition of alcohol was neither practicable nor desirable, and she                                                                                                                                                                                                                                            

 chose not to enforce the rule prohibiting alcohol consumption against people who weren't                                                                                                                                                                                                                               

 "causing any problem."                              

                                                     We have observed that "[i]mmunity remains if the injury results from a                                                                                                                                                                                                                     

                                                                                                                                                                                      56   Marlow's decision concerning alcohol  

 deliberate choice in the formulation of policy."                                                                                                                                                                                                                                                                        

use at the campground was the result of deliberation and took into account various  


 interests  and  objectives.                                                                               We  conclude  that  the  decision  to  allow  "minor"  alcohol  


 consumption so long as it did not "caus[e] . . . problem[s]" was a planning decision for  


which the City is immune.  


                                                     But once the City decided to leave the campground open and allow some  


 drinking in limited circumstances, it did not have the discretion to carry out these choices  


                           56                       Id.   (quoting   Joe   R.   Greenhill   &   Thomas   V.   Murto   III,   Governmental  

Immunity, 49 T                                               EX. L. R                       EV. 462, 472 (1971)).                                                                 

                                                                                                                                                                    -18-                                                                                                                                                        7238  

----------------------- Page 19-----------------------


negligently.                       Accordingly, we conclude that the City could be liable for Marlow's                                                                                     

supervision of Valle, including her allegedly inconsistent instructions regarding alcohol                                                                                                         

use.   The routine supervision of personnel generally falls under the heading of the "day-                                                                                                            


by-day" business of government, for which the City does not enjoy sovereign immunity.                                                                                                                                 

And we do not think that allowing Lane's negligent supervision claim to proceed on the  


merits would frustrate the purposes of sovereign immunity.   The claim does not, for  


instance,  require  a  court  to  second-guess  the  wisdom  of  allowing  "minor"  alcohol  


consumption; it merely asks whether Marlow exercised reasonable care in carrying out  


that policy.59                    Such a matter is well within the expertise of Alaska trial courts.60   And our  


decisionherewill not exposemunicipalities to excessiveor unwarranted liability, because  


the City's discretionary policymaking functions remain insulated from judicial review.61  


                                WeconcludethatLane'snegligentsupervision claim,allegingthatMarlow's  


explanation of the campground alcohol policy to Valle was inconsistent and confusing,  


concerns an operational matter rather than a planning decision.  We therefore reverse the  


                57              Id.  at 720-22.                    

                58              See State v. Stanley                           , 506 P.2d 1284, 1291 (Alaska 1973) (concluding that                                                                      

State's "failure to exercise proper care," including the negligence of a supervisor, did                                                                                                                  

"not rise to the 'level of governmental policy decisions' to which discretionary function  


immunity . . . applies").                                  

                59              See Abbott , 498 P.2d at 721-22.  


                60              See id.  


                61              See id.  


                                                                                                     -19-                                                                                            7238

----------------------- Page 20-----------------------

superior   court's   grant   of   summary   judgment   on  this   issue   and   remand   for   further  




               B.	            There Are Genuine Issues Of Fact As To Whether Valle Was Acting  


                              Within The Scope Of His Employment.  


                              Lane also argues that the superior court erred in concluding that Valle's  


actionable conduct - specifically Valle's "failure" to disperse the "drinking party" at  


which Lane was shot - did not fall within the scope of Valle's employment with the  



                 The superior court concluded that Valle was "simply socializing outside the scope  


of his work responsibilities," and that he did not intend by his conduct to "promot[e] the  


[City's] interests."  But Valle's job duties as caretaker arguably required him to socialize  


with other campground residents.  And while we agree that Valle neglected some of his  


work responsibilities on the evening of the shooting, we cannot conclude as a matter of  


law that Valle was acting outside the scope of his employment.  


                              Before holding an employer legally responsible for an employee's conduct,  


a  court  must  determine  whether  the  employee's  conduct  was  "so  connected  to  his  

               62             Lane also argues that the City's "failure to employ security was not . . .                                                                                        

protected by immunity."                                   He contends that the City had a "special relationship" with                                                                    

campground residents similar to that of a landowner or a common carrier, and that this                                                                                                      

special relationship "creat[ed] a duty to act."                                                        But the City's choice to forgo additional         

services like private security patrols was fundamentally a matter of resource allocation;                                                                                   

it was therefore a planning decision for which the City is immune.                                                                                   See 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.").                                                                                            

               63             Although the parties disputed whether Valle was a City employee or an  


independent contractor, we assume for this analysis that Valle was an employee, as did  


the superior court.  See Lockwood v. Geico Gen. Ins. Co., 323 P.3d 691, 696 (Alaska  


2014) ("We review rulings on motions for summary judgment de novo, 'reading the  


record in the light most favorable to the non-moving party and making all reasonable  


inferences in its favor.' " (quoting Lum v. Koles, 314 P.3d 546, 552 (Alaska 2013))).  


                                                                                              -20-	                                                                                     7238

----------------------- Page 21-----------------------


employment as to justify requiring . . . the employer [to] bear [the plaintiff's] loss."                                                             We  

have therefore followed the traditional rule that an employer is liable for the torts of an   

                                                                                                                                           65  "[T]he  

employee only "while the [employee] is acting in the scope of his employment."                                                                  

scope of employment is a fact specific inquiry for the jury unless the facts are undisputed  


or lend themselves to only one conclusion."66  


                        An employee's conduct does not fall outside the scope of employment  


simply because it is discouraged, or even prohibited.67                                           We have noted that even crimes  


and intentional torts may be within the scope of employment if they serve the employer's  


interests, albeit "in a perverted sense."68   For example, we have held that a union steward  


who incited a violent confrontation with a rival union was "motivated, at least in part,"  


to serve his union's interests;69 that a therapist's abusive sexual relationship with a patient  


                                                                                                                          70  and that a school  

could be found to be "incidental" to the therapist's professional duties;                                                                      


            64          Williams v. Alyeska Pipeline Serv. Co.                              , 650 P.2d 343, 349 (Alaska 1982)  

(quoting  Fruit v. Schreiner                    , 502 P.2d 133, 141 (Alaska 1972)).                 

            65         Id. (citing Kastner v. Toombs, 611 P.2d 62, 63 (Alaska 1980)).  


            66          Ondrusek v. Murphy, 120 P.3d 1053, 1057 (Alaska 2005) (citing Taranto  


v. N. Slope Borough, 909 P.2d 354, 359 (Alaska 1996)).  


            67         Laidlaw Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d 1093, 1099 (Alaska  


2002) ("A wrongful act committed by an employee while acting in his employer's  


business  does  not  take  the  employee  out  of  the  scope  of  employment,  even  if  the  


employer has expressly forbidden the act." (quoting Ortiz v. Clinton, 928 P.2d 718, 723  


(Ariz. App.1996))).  


            68          Williams, 650 P.2d at 350.  


            69         Id.  

            70         Doe v. Samaritan Counseling Ctr., 791 P.2d 344, 348 (Alaska 1990).  


                                                                          -21-                                                                  7238

----------------------- Page 22-----------------------

bus driver with "trace amounts of marijuana" in her system acted within the scope of her                                                                                       

employment because she nonetheless "carried out the very function [she] was hired to                                                                                 

                                                                       71    In each of these cases we noted the "flexible" and  

perform - driving a school bus."                                                                                                                                              


fact-specific nature of the scope-of-employment question.                                                                     


                            Lane alleges that Valle was supposed to "help . . . shut down drinking  


parties," that he failed to do so on the night of the shooting, and that his failure was  


therefore reasonably incidental to his job responsibilities. Some facts appear to favor his  



                            According to the Second Restatement of Agency, an employee acts within  


the scope of employment if the employee (1) performs the kind of work the employee was  


hired to perform, (2) acts within the employer's "authorized time and space limits," and  


                                                                                                             73    Marlow testified that Valle was  

(3) acts in order to further the employer's interests.                                                                                                                        


supposed to "interact" with guests and "be available" to them in the evening.  Valle also  


did not have established work hours.   A "reasonable person could discern a genuine  


              71            Laidlaw Transit, Inc.                       , 53 P.3d at 1096, 1099.                           



                            Id.  at 1098-99 ("This court does not follow a rigid rule for determining  


when tortious conduct occurs within the scope of employment; rather, we apply 'a  


flexible, multi-factored test.' " (quoting Doe, 791 P.2d at 346)); Doe, 791 P.2d at 346  


("Applicability of respondeat superior will depend primarily on the findings of fact in  


each case." (quoting Fruit v. Schreiner, 502 P.2d 133, 141 (Alaska 1972))); Williams,  


650 P.2d at 349 ("The determination as to when an employee's tort will be attributed to  


the employer depends primarily on the facts and circumstances of each case.").  

              73            Williams,  650  P.2d  at  349  n.10  (quoting  RESTATEMENT   (SECOND)   OF  


AGENCY      228(1)-(2)   (AM.    LAW.    INST .    1958)).     We   have   "rejected   the   Second  


Restatement's   view   that   each   of   the   [section]   228(1)[]   factors  must   be   satisfied  

prerequisite to recovery, and noted instead that the importance of various factors" should                                                                             

be weighed by the fact-finder in each case.                                                Doe, 791 P.2d at 347  (emphasis omitted)                                

(citing   Luth v. Rogers & Babler Constr. Co.                                              , 507 P.2d 761, 764 & n.14 (Alaska 1973)).                                

                                                                                       -22-                                                                               7238

----------------------- Page 23-----------------------


factual dispute"                                                                         as to whether by "socializing" with other campground residents in the                                                                                                                                                                                                                                                                               

evening Valle was performing the kind of work he was hired to perform and was acting                                                                                                                                                                                                                                                                                                                                         

within "authorized time and space limits."                                                                                                                                       

                                                                    The superior court concluded, however, that Valle did not act to further the                                                                                                                                                                                                                                                                                              

City's   interests.     The   court's   conclusion   has   significant   support   in   the   record.     As  

caretaker, Valle was supposed to tell groups of campers drinking in the open to "take it                                                                                                                                                                                                                                                                                                                                                              

elsewhere" or "shut it down."                                                                                                                           But rather than doing this with Lane and the others on the                                                                                                                                                                                                                           

night ofLane's                                                               injury, Valle joined them. The                                                                                                                           campground rules prohibited drinking, and  

Marlow told Valle to "turn a blind eye to minor consumption."  But Valle did far more                                                                                                                                

than "turn a blind eye," and Lane's group apparently consumed more than a "minor"                                                                                                                                                                                                                                                                                                                          

amount of alcohol.  Valle provided the group with money to buy beer, and he drank so                                                                                                                                                       

much that it "took [his] judgment away."                                                                                                                                                                                      The campground rules strictly prohibited                                                                                                                                

firearms, but Valle nevertheless gave the group of intoxicated campers access to his two                                                                                                                                                                                                                                                                                                                                                  

loaded pistols.   

                                                                    We cannot, however, conclude as a matter of law that Valle's conduct was                                                                                                                                                                                                                                                                                             

not "reasonably incidental" to his employment.                                                                                                                                                                                                   Valle was supposed to "be available" to                                                                                                                                                           

campers;   he   was   essentially   the   City's   regular   liaison   and   representative   at   the  

campground.    He testified that he was "off the clock," but in fact he had no set work                                                                                                                                                                                                                                                                                                                                           

hours; he was neither on nor off the clock at any given time.                                                                                                                                                                                                                                                               And as Lane points out,                                                                                     

Valle's mere presence at the campground may have benefitted the City.                                                                                                                                                                                                                                                                                                            Our precedent   

has established that an employee who exercises poor judgment or does his job while                                                                                                                                                                                                                                                                                                                                             

                                                                                                                                                                                                                                                                                                                                                           75  And Valle's poor  

intoxicated may nevertheless act within the scope of his employment.                                                                                                                                                                                                                                                                                                                                                                  

                                  74                                 Christensen v. Alaska Sales &Serv., Inc.                                                                                                                                                                 , 335                    P.3d 514, 520 (Alaska 2014).                                                                                      

                                  75                                See, e.g., Laidlaw Transit, Inc., 53 P.3d at 1099.  


                                                                                                                                                                                                                     -23-                                                                                                                                                                                                        7238  

----------------------- Page 24-----------------------

judgment in this case does not conclusively demonstrate that his behavior on the night of                                                                                                                            

 the shooting was not "reasonably incidental" to his work responsibilities.                                                                                                                  One could   

 argue that Valle was doing his job but doing it poorly.                                                              

                                  We therefore conclude that the superior court erred in granting summary                                                                                          

judgment on Lane's vicarious liability claim.                                                                         "[T]he scope of employment is a fact                                                      

 specific inquiry for the jury unless the facts are undisputed or lend themselves to only one                                                                                                                     

                                76  Some of the facts in the record support the superior court's conclusion, but  


 others do not.  We will affirm a grant of summary judgment only when "no reasonable  


person could discern a genuine factual dispute."77                                                                                 Because a genuine factual dispute  


 exists  here,  we  reverse  the  superior  court's  grant  of  summary  judgment  on  Lane's  


 vicarious liability claim and remand for further proceedings.78  


                 76               Ondrusek v. Murphy                                 , 120 P.3d 1053, 1057 (Alaska 2005) (citing                                                                   Taranto  

 v.  N. Slope Borough                              , 909 P.2d 354, 359 (Alaska 1996)).                                     

                 77               Christensen, 335 P.3d at 520 (citing Yurioff v. Am. Honda Motor Co., 803  


 P.2d 386, 389 (Alaska 1990); Semlek v. Nat'l Bank of Alaska, 458 P.2d 1003, 1007  


 (Alaska 1969); Isler v. Jensen, 382 P.2d 901, 902 (Alaska 1963)).  


                 78               As an alternative ground for affirmance, the City argues that it cannot be  


 held liable for Barrios's intentional criminal act absent a special relationship between  


 itself and Lane, citing authority including Hurn v. Greenway, 293 P.3d 480, 483-84  


 (Alaska 2013), for the proposition that "a person generally has no duty to protect others  


 from harm by a third party."  But at the very least there is an exception to these general  


 rules "where the actor's own affirmative act  has  created or exposed the other to a  


 recognizable high degree of risk of harm through such misconduct, which a reasonable  


 man would take into account."  Id. at 484 (quoting RESTATEMENT  (SECOND) OF  TORTS   


  302B cmt. e (AM. LAW  INST . 1965)). An                                                               example of such an "affirmative act" is when  


 "[t]he   actor   provides   the   instrument   of   the   crime   to   the   criminal."     Id.   (quoting  

 RESTATEMENT  (SECOND)  OF  TORTS   302B cmt. e.)                                                                               On the record before us, we are not                                            

 convinced of the absence of a genuine issue of material fact as to whether Valle's                                                                                                                  


                                                                                                        -24-                                                                                                7238

----------------------- Page 25-----------------------

V.        CONCLUSION  

                   We  REVERSE  the  superior  court's  grant  of  summary  judgment  on  


(1) Lane's claim that Marlow negligently supervised Valle by sending "mixed messages"  


about alcohol; and (2) Lane's vicarious liability claim against the City based on Valle's  


conduct.   We conclude that both claims raise genuine issues of material fact, and we  


therefore REMAND to the superior court for further proceedings consistent with this  


opinion.  We otherwise AFFIRM the judgment of the superior court.  


          78       (...continued)  


provision of the pistols exposed other campers "to a recognizable high degree of risk of  

                                ESTATEMENT (SECOND)  OF  TORTS    302B cmt. e).                           We also note  

harm."  Id. (quoting R 


Marlow's testimony that the campground's residents included people who had been  


excluded from homeless shelters because of previous incidents of violence.  

                                                            -25-                                                      7238

----------------------- Page 26-----------------------

 STOWERS, Chief Justice, dissenting in part.                                                                                              

                                              There is an adage that no good deed goes unpunished. The court's decision                                                                                                                                                      

 holding that there is a genuine issue of material fact whether the City is vicariously liable                                                                                                                                                                                         

 for Valle's conduct perfectly illustrates this point.                                                                                                                   The City, in an effort to provide some                                                                        

 type of winter housing for homeless people in the City, kept open over the winter a                                                                                                                                                                                                                

 campground that generallyserved                                                                                   to provideaccommodations for transient                                                                                                 workers in the                        

 summer. The City evidently recognized the need for a point of contact between itself and                                                                                                                                                                                                    

 the campground residents and hired a campground caretaker, asking him to interact with                                                                                                                                                                                                   

 campground   residents   as  part  of   his   duties.     Presumably   because   the   City   saw   the  

 necessity of its caretaker interacting with campground residents and the need for the                                                                                                                                                                                                        

 caretaker to be effectively on call all the time, the City did not set explicit work hours for                                                                                                                                                                                                 

                                               1     All of the City's decisions were reasonable.  In fact it is hard to imagine  

 the caretaker.                                                                                                                                                                                                                                                               

 a caretaker of any campground who would not be available more or less at all times to  


 interact with campground guests or in the event of emergencies.  


                                              Under the court's decision today, the City is unable to prevail on summary  


judgment on the issue of vicarious liability precisely because it made reasonable choices  


 about staffing the campground.  The court holds today that the City might be vicariously  


 liable  for  the  caretaker's  action  because  he  was  expected  to  "socialize  with  other  


 campground residents," to " 'interact' with guests and 'be available' to them in the  


 evening." Under this rule, no rational policymaker would ever make the decision the City  


 made here because there is simply no way to cut off the City's potential for vicarious  


 liability involvingsocial interactionwithoutexpensiveandtime-consuminglitigation that  


 takes public resources from other public needs.  


                        1                     Like the court, I assume for purposes of this analysis that the caretaker was                                                                                                                                                               

 a City employee and not an independent contractor.                                                                                         

                                                                                                                                              -26-                                                                                                                                    7238  

----------------------- Page 27-----------------------

                                                            Valle, the campground caretaker here, thinking he was "off the clock,"                                                                                                                                                                                                                                                                           

actively participated in a drinking party that was unquestionably a violation of the City's                                                                                                                                                                                                                                                                                  

campground rules and, because the drinking "took [his] judgment away," showed other                                                                                                                                                                                                                                                                                              

members of the party loaded guns he had brought to the campground, also in violation of                                                                                                                                                                                                                                                                                                        

City campground rules. Another resident, Barrios, used one of these guns to shoot Lane,                                                                                                                                                                                                                                                                                        

who survived but was injured.  I cannot agree that the facts of this case can lead to any                                                                                                                                                                                                                                                            

other conclusion but that Valle's actions did not further his employer's interests.                                                                                                                                                                                                                                                                                      In fact   

his actions were detrimental to the City's interests in providing homeless individuals a                                                                                                                                                                                                                                                                                                          

place to camp legally during the winter. Because I see no material factual dispute on this                                                                                                                                                                                                                                                                                              

question, I would hold that the City cannot be vicariously liable for Valle's actions.                                                                                                                                                                                                                                                              

                                                            The way the court frames the issue about both Valle's actions and the City's                                                                                                                                                                                                                                     

interests leads to its erroneous analysis.                                                                                                                                                 As we said in                                                          Williams v. Alyeska Pipeline                                                                   

Service Co.                                         , when considering an employer's vicarious liability, the question is whether                                                                                                                                                                                                                                  

the employee's "acts were sufficiently associated with the [employer] to justify imposing                                                                                                                                                                                                                                                                     

                                                                                                                                  2          While the court emphasizes the benefits to the City of  

liability on the [employer]."                                                                                                                                                                                                                                                                                                                                                                

Valle's socializing with campground residents and attempts to characterize the issue as  


whether Valle's participation in thedrinking partywasmerely"poor judgment"that could  


 show only "that Valle was doing his job but doing it poorly," it neglects to explain how  


allowing his companions, most of whom were drunk, to "pass[] . . . around" loaded guns  


and then "shooting [the guns] up in the air and carrying on" himself could possibly be  


 sufficiently  associated  with  his  employment  to  impose  liability  on  the  City.                                                                                                                                                                                                                                                                                           Even  


accepting that a campground caretaker is effectively never outside "authorized time and  


                              2                             650 P.2d 343, 349 (Alaska 1982).                                                                                          

                                                                                                                                                                                            -27-                                                                                                                                                                               7238  

----------------------- Page 28-----------------------


 space   limits"   while   at   the   campground,   sharing   loaded   firearms   with   campground  


residents cannot reasonably be considered conduct Valle was employed to perform.                                                           Nor  


does the court explain how Valle's shooting in the air and allowing another resident to  


take turns shooting with himcould ever serve the City's purpose and not his own personal  



                      We may have a very liberal standard for surviving summary judgment,  but  


there must be some point at which common sense comes into play to foreclose finding a  


material issue of fact. Here Valle's actions went beyond interacting with guests and being  


available to them in the evening. He drank excessively and contributed money so that he  


and other revelers could continue drinking.  Valle - at least according to Lane - shot  


the gun into the air himself and allowed Barrios to take turns shooting with him before  


Barrios turned the gun on Lane. These actions, which were crucial links of the causation  


chain in Lane's injury, can by no stretch of the imagination be considered part of Valle's  


job, nor can they be said to further the City's interests. Only by ignoring Valle's firearms  


misconduct  and  concentrating  on  his  drinking  can  the  court  reach  the  untenable  


conclusion that a material issue of fact remains about whether the City is vicariously  


           3          See  id.  at  349  n.10  (setting  out  factors  to  evaluate  employee  conduct for  

vicarious  liability).  

           4          Id .  

           5          Id.  

           6           See  Christensen  v.  Alaska  Sales  &  Serv.,  Inc.,  335  P.3d  514,  521  (Alaska  

2014)  (describing  summary  judgment  standard  as  "low").  

                                                                     -28-                                                              7238

----------------------- Page 29-----------------------

liable for Valle's actions.                                                    In deciding whether a genuine issue of material fact exists, we                                                                                                                        

cannot exclude critical facts to discern a material factual dispute.                                                                                                                                     7  

                                         If the court's result in this case is compelled by our precedent - and I  


would hold that it is not so compelled - then it may be time to reexamine the rules we  


have established. We have liberally construed the "motivation to serve" test, interpreting  


it  to  be  met  by  showing  that  the  "tortious  conduct  arises  out  of  and  is  reasonably  


incidental to the employee's legitimate work activities."8                                                                                                                          We elaborated by saying that  


"the act which leads to the tortious behavior cannot be different in kind from acts the  


employee is authorized to performin furtherance of the employer's enterprise."9  Thus we  


held  that  a  counselor  who,  in  order  to  do  his  job  effectively,  needed  to  establish  


"transference" with  his patient but then  abused  the "transference phenomenon" had  


                                                                                                                                 10       And in the case of a school bus driver who  

engaged in conduct that met the standard.                                                                                                                                                                                                                        


negligently drove a school bus after using marijuana, we noted that negligent driving, not  


                     7                    For the same reasons, I disagree with the court's dismissal of the City's                                                                                                                                      

argument that it cannot be held liable for Barrios's intentional criminal act of shooting                                                                                                                                                        

Lane. Leaving aside the fact that we have never adopted the "general rules" the court                                                                                                                                                                       

discusses,  see Hurn v. Greenway                                                                      , 293 P.3d 480, 484 (Alaska 2013) ("Unlike  315, we                                                                                                         

have never adopted  302B."), the question whether "Valle's provision of the pistols                                                                                                                                                                   

exposed other campers 'to a recognizable high degree of risk of harm' " does not resolve                                                                                                                                                              

the question of the                                        City's liability for the shooting.  Even if Valle's actions did expose                                                                                                                     

other campers to a recognizable degree of risk of harm, for the City to be vicariously                                                                                                                                                   

liable, giving others access to loaded firearms must have reasonably been related to                                                                                                                                                                                 

Valle's job or the City's interests.                                         

                     8                   Doe v. Samaritan Counseling Ctr., 791 P.2d 344, 348 (Alaska 1990).  


                     9                   Id . at 348 n.7.  


                     10                  Id. at 345, 348.  


                                                                                                                                 -29-                                                                                                                        7238

----------------------- Page 30-----------------------


drug use, was "the conduct giving rise to the punitive damages award."                                                                                                      Finally, we held            

that a union was vicariously liable for the actions of its steward who incited the violent                                                                             

beating of another union's member when the steward (1) used his position of authority                          

to call a union meeting at a time and place intended to provoke a confrontation, (2) "had                                                                                                              

no personal motive for his activities," and (3) "was, in a perverted sense, resolving a                                                                                                                         


grievance held by some of the union's members."                                                                               

                                Why is it that bringing loaded guns into the campground, showing them to  


fellow inebriates, and shooting them are not "different in kind from acts [Valle was]  


authorized to perform in furtherance of [the City's] enterprise"?13                                                                                                 Why did Valle not  


have a personal motive for his actions? Or to put it another way, what motivation to serve  


the city prompted Valle's weapons misconduct?14                                                                              While the City may have expected  


Valle to "interact" with guests, the type of interaction that led to this shooting was well  


beyond anything the City might have contemplated.  If this conduct can reasonably be  


considered socializing or interacting with campground guests that served the City's  


purpose, we may need to reconsider our legal test for vicarious liability.   And if our  


summary judgment standard is so low as to require a trial on the facts presented here, it  


may also be time to consider whether we have set the "summary judgment survival" bar  


too low.  


                11              Laidlaw  Transit,  Inc.  v.  Crouse  ex  rel.  Crouse,  53  P.3d  1093,  1098  (Alaska  


                12               Williams  v.  Alyeska  Pipeline  Serv.  Co.,  650  P.2d  343,  350  (Alaska   1982).  

                13              See  Doe,  791  P.2d  at  348  n.7.  

                14              See   Veco,   Inc.   v.   Rosebrock,   970   P.2d   906,  924  n.36   (Alaska   1999)  

(modifying  Doe  to  explicitly  require  some  purpose  to  serve  the  employer).  

                                                                                                    -30-                                                                                            7238

----------------------- Page 31-----------------------

                                                                                 Because I cannot agree that a material issue of fact remains on the question                                                                                                                                                                                                                                                                                                                                     

of vicarious liability, I respectfully dissent from part IV.B of the court's opinion.                                                                                                                                                                                                                                                                                                                                                                                                                   I agree   

with the remainder of the court's opinion.                                                                                                                                                                   

                                                                                                                                                                                                                                                                                    -31-                                                                                                                                                                                                                          7238

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights